Docket: T-1649-10
Citation: 2011 FC 1261
Vancouver, British Columbia, November
3, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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SCOTT NEWBERRY
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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]
“I
am mindful that transfers under the International Transfer of Offenders’ Act
(ITOA) are a discretionary privilege for offenders incarcerated abroad.
There is no right to a transfer under the ITOA at any time. The Minister may
come to his or her own conclusion. The fact that a Minister has come to a given
conclusion before, does not prevent the same Minister or a different Minister
from lawfully changing his or her mind if faced with the same set of facts at a
later date.” Justice John O’Keefe, subsequent to the respective Kozarov and
Getkate decisions, acknowledged the deference owed the Minister by
having agreed in paragraph 30 of Dudas that it could basically not be
otherwise than to defer to the Minister. It is the discretion of the Minister
to do as he did, per the reasons (which demonstrate the existence of an
inherent logic in which justification, transparency and intelligibility are
evident), not to transfer the Applicant to Canada.
[2]
Justice
Near, in Grant #2, above, framed the specific test for reasonableness,
in the context of a decision based at least in part on the factor specified in
paragraph 10(2)(a) of the ITOA:
[38] The
real issue to deal with then is whether there was sufficient evidence to allow
the Minister to make a good-faith finding that the Applicant presents a
significant risk of committing a criminal organization offence once transferred
to Canada. In my view, the Minister acted
reasonably in concluding that such evidence exists.
[3]
Due
to the manner in which the case below has been set out for analysis by both
parties, having presented their respective differing positions, the Court,
under the circumstances in respect of the standard of review of reasonableness,
agrees wholly with the position of the Respondent (the decisions referred
to in the introduction are cited below in context).
II. Background
[4]
The
Applicant, Mr. Scott Newberry, a Canadian citizen, was sentenced and
incarcerated in the United States of America on conviction for
conspiracy to distribute more than 5 kilograms of cocaine.
[5]
In
an application, dated June 11, 2009, the Applicant requested, pursuant to the
provisions of the International Transfer of Offenders Act, SC 2004, c 21
[ITOA], that he be transferred to Canada in order to serve the remainder
of the sentence of imprisonment that had been imposed upon him in the United
States.
[6]
In
addition to the information provided in his application, supplementary
material, in the form of an assessment prepared by Correctional Service of
Canada [CSC], a U.S. Certified Case Summary, a comprehensive community
assessment and letters of support, was presented to the Minister for his
consideration.
[7]
On
September 2, 2010, the Minister of Public Safety and Emergency Preparedness
refused to approve the transfer application on the basis that the objectives of
the international transfer of offenders scheme could not be as effectively
achieved through transfer of the Applicant to Canada at that time.
III. Issues
[8]
As
the Applicant concedes, the constitutional issue raised has been
previously determined by the Federal Court of Appeal in Divito v Canada (Minister of
Public Safety and Emergency Preparedness), 2011 FCA 39, in favour
of the Respondent.
[9]
The
sole remaining issue is whether the Minister acted improperly, or in an
unreasonable manner, in exercising his discretion under the ITOA by
refusing to approve the Applicant’s request for transfer.
IV. Analysis
[10]
The
Federal Court in reviewing the exercise of executive discretion has recognized
that unless the Minister can be said to have acted improperly, in a wholly
unreasonable manner, or to have committed an error of law, the exercise of
his discretion cannot be successfully assailed (Maple Lodge Farms Ltd v
Canada, [1982] 2 S.C.R. 2; Kozarov v Canada (Minister of Public Safety and
Emergency Preparedness), 2007 FC 866, [2008] 2 FCR 377; Getkate v
Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 965,
[2009] 3 FCR 26; Grant v Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 958, 373 FTR 281 [Grant #2]; Holmes v
Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC
112; Duarte v Canada (Minister of Public Safety and Emergency Preparedness),
2011 FC 602).
[11]
The
Court agrees with the position of the Respondent that, on the facts of this
matter, as per their significance in light of the jurisprudence and legal
instruments, the Minister’s decision was a proper exercise of his discretion.
A.
Constitutional Challenge
[12]
Counsel
appearing on this matter have argued the constitutional issue on a number of
previous occasions before this Court.
[13]
In
Kozarov, above, appeal to the Federal Court of Appeal, 2008 FCA 185,
dismissed on other grounds, the Court determined that sections 8 and 10 of
the ITOA do not infringe upon the rights contained in section 6 of
the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, enacted as Schedule B to the Canada Act 1982 (UK) 1982, c
11 [Charter]:
[37] I
would dismiss the application for judicial review with costs, and answer the
constitutional questions as follows. Is the applicant entitled to:
a. A declaration that … [Mr.
Kozarov] by virtue of his Canadian citizenship and s. 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, refuge or
postpone such entry and return to Canada;
b. 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 … [International
Transfer of Offenders Act] and s. 6 of the Canadian Charter of Rights
and Freedoms, subject only to the Applicant being a Canadian citizen.
c. A declaration that the
provisions of the …[International Transfer of Offenders Act], namely, s.
8(1) and s. 10, and in particular s. 10(1)(b) and (c) are
unconstitutional as being inconsistent with s. 6(1) of the Canadian Charter
of Rights and Freedoms and, as such, are of no force or effect by virtue of
s. 52 of the Canadian Charter of Rights and Freedoms.
d. declaration that the
constitutional rights of the applicant, pursuant to s. 6 of the Canadian
Charter of Rights and Freedoms, have been violated by the Respondent Minister
since approximately January 11, 2006, when the United States of American
approved his transfer back to Canada, and therefore that the Applicant is
entitled to an appropriate and just remedy, pursuant to s. 24(1) of the Charter,
including an order for his immediate transfer back to Canada pursuant to the
terms of the… [International Transfer of Offenders Act], and the
applicable treaty or convention between Canada and the United States of America.
The answer is: no.
[14]
This
Court had the further opportunity to consider the same constitutional argument
in Getkate, above. The Court, in that case, concurred with the
conclusion reached by the Court in Kozarov. Justice Michael Kelen,
stated:
[26] The
mobility rights of the applicant to enter and leave Canada are temporarily restricted by the applicant’s U.S. prison sentence. The Transfer of Offenders Act is to
assist rehabilitation and reintegration in appropriate situations, not to allow
all Canadians serving sentences outside of Canada an automatic right to return
to Canada to serve their sentence. As Justice
Harrington held in Kozarov, above, para. 32.
At
the present time, we are not really speaking of mobility rights at all. We are
rather speaking of the transfer of supervision of a prison sentence. Had the Minister
given his consent, Mr. Kozarov could not on his arrival here have immediately
asserted his mobility right to leave the country.
Accordingly,
I agree with Justice Harrington that the Act does not affect the applicant’s
mobility rights under the Charter.
[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.
(Reference is also made to Divito, above;
Dudas v Canada (Minister of Public
Safety and Emergency Preparedness), 2010 FC 942, 373 FTR 253; Curtis v Canada (Minister of Public
Safety and Emergency Preparedness), 2010 FC 958, 373 FTR 281).
[15]
More
recently, on February 2, 2011, after performing a full section 1 analysis,
Justice Michael Phelan, in Holmes v Canada (Minister of Public Safety and Emergency
Preparedness),
2011 FC 112, endorsed the previous reasoning of this Court in Kozarov
and Getkate, above.
[16]
More
significantly, on February 3, 2011, the Federal Court of Appeal, in Divito,
above, endorsed this Court’s preceding jurisprudence on this issue and found
section 6 not to be engaged in this context and, in the event that it was,
any limit placed upon that right by the legislation was justifiable in
accordance with section 1.
[17]
In
this light, the Court agrees with the position of the Respondent that the
constitutional issue has been dealt with by courts that have previously
addressed this issue.
B.
Decision Challenged
[18]
In
this matter, the Minister considered the factors under section 10 of the ITOA
as he was required by law. The Minister also took into account the information
contained in the material that has been filed in this proceeding pursuant to
the Applicant’s Rule 317 request. That information was in large part provided
by the Applicant.
[19]
Upon
taking into account all relevant considerations, the Minister concluded that
approval of the transfer request would not assist in achieving the objectives
of the international transfer of offenders system.
[20]
The
Minister, in his decision, 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, Scott Newberry, is a
Canadian citizen serving a sentence of imprisonment for 10 years in the United
States (U.S.) for conspiracy to distribute more than 5 kilograms of cocaine. On
September 14, 2005, following an investigation by the Regional Organized Crime
Narcotics Task Force, Mr. Newberry was arrested after loading 39 kilograms
of cocaine into a hidden compartment of his truck. He was found in possession
of $85,000 in U.S. currency. This case is
identified as a large drug smuggling conspiracy, in which Mr. Newberry was
identified as “just below” the head of a Canadian drug organization by the
Assistant United States Attorney.
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 accomplices were involved in the
offence who had been investigated by the authorities and the nature of the
offence also suggests that others were involved who were not apprehended. Ties
to organized crime are suggested by certain indications in the file that the
applicant was in direct contact with the head of the Canadian drug organization
being investigated by the U.S.
The applicant was involved in the
commission of a serious offence involving a large quantity of drugs that, if
successfully committed, would likely result in the receipt of a material or
financial benefit by the group he assisted. He transported cocaine and money
from the U.S. to Canada and high quality
marijuana and ecstasy from Canada to the U.S. in numerous trips over many years,
involving huge quantities of cocaine. The applicant was identified as a key
link in the transportation of the drugs across the border as it was his truck,
registered in his name and containing a secret hydraulic compartment that was
used between 1998 and 2005. He was held accountable for 279 kilograms of
cocaine and the money that he transported was reported to be used to pay others
involved in the criminal activity.
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 and the fact that the
applicant’s family members remain supportive. I also note the applicant’s
mother’s illness.
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.
[21]
The
Court in Kozarov, [2008] 2 FCR 377, above, recognized the flexibility
inherent in the international transfer of offenders system:
[21] In
any event, the section 10 factors, taken into account by the international
community with respect to the transfer of prisoners from one jurisdiction to
another, are fairly new, and fairly fluid …
[22]
The
Minister’s discretion is not circumscribed by any of the factors contained
within section 10. It is in the purview of the Respondent to base his
decision to refuse or approve a transfer request on any other relevant consideration
in the context. The process necessarily involves a weighing of the factors. It
is not, as the Applicant would have it, an all or nothing proposition. The presence
of absence of a particular factor does not dictate or compel a result.
[23]
In
this particular case, consideration of the factor specified in paragraph 10(2)(a)
of the ITOA, when coupled with all of the other circumstances of the
application, caused the Minister sufficient cause for consternation that he
concluded that the objectives of the international transfer of offender’s
scheme could not be effectively achieved through transfer of the Applicant to
Canada. That factor, in the Minister’s view, tipped the scale against a
transfer and, on that basis, he specifically referred to it in his reasons.
C.
Standard of Review
[24]
The
reasonableness of the Minister’s decision is gauged by reference to the
information in the record and on the standard provided by Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. In establishing what constitutes a
reasonable decision in paragraph 47 of that case, the Supreme Court of Canada,
specifies:
[48] …
We agree with David Dyzenhaus where he states that the concept of “deference as
respect” requires of the courts “not submission but a respectful attention to
the reasons offered or which could be offered in support of a decision”: “The
Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The
Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in
Baker, at para. 65, per L’Heureux-Dubé J.; Ryan, at para. 49).
[25]
In
Dudas, above, Justice John O’Keefe followed Kozarov and Getkate,
above, and confirmed that the Minister’s decision is entitled to significant
deference upon review. At paragraph 30 of Dudas, Justice O’Keefe further
emphasized the degree of deference owed and stated:
I
am mindful that transfers under the ITOA are a discretionary privilege for
offenders incarcerated abroad. There is no right to a transfer under the ITOA
at any time. The Minister may lawfully come to his or her own conclusion. The
fact that a Minister has come to a given conclusion before, does not prevent
that same Minister or a different Minister from lawfully changing his or her
mind if faced with the same set of facts at a later date.
[26]
Justice
David Near in Grant #2, above, upholding a decision on the basis of
reasonableness, likewise found that the Minister is owed a significant degree
of deference.
[27]
In
Holmes, above, Justice Phelan stated:
[46] …
As noted in the discussion on Legislative Framework, the Minister’s discretion
is broad and the deference owed to the Minister’s assessment of relevant
factors is significant.
[28]
The
question for this Court to answer is whether, on the information contained in
the record, one could reasonably conclude that there was a basis for the
Minister to come to the conclusion that the objectives of the international
transfer of offender’s system, being protection of society and rehabilitation
of the offender through reintegration into society, could not be as effectively
achieved through transfer to Canada.
[29]
To
that end, in light of the broad discretion granted to the Minister under the ITOA
and the deference which is afforded by the Court to the exercise of that
discretion, unless the record is absent, evident upon which such a conclusion
could be based (Getkate, above), this Court defers to the Respondent’s
decision.
[30]
In
Duarte, above,
Justice Yvon Pinard accepted that test in finding the Minister’s decision
withstood review:
[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.
[31]
In
determining that the Minister acted reasonably in Holmes, above, Justice
Phelan, after adopting the Federal Court of Appeal’s reasoning in Vancouver
International Airport Authority v Public Service Alliance of Canada, 2010
FCA 158, as to the purposes for which adequate reasons are required, expounded
on the exercise of the Minister’s discretion in this context:
[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.
[32]
Applying
Justice Phelan’s reasoning in Holmes, above, Justice Pinard, in Duarte, above,
upheld the Minister’s decision stating:
[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.
D. Sufficiency
of Reasons
[33]
Earlier
in Grant v MPSEP (March 4, 2010) T-1414-09 [Grant #1], Justice
Robert Barnes had the opportunity of addressing the reasonableness of a
previous Minister’s decision, and more particularly the sufficiency of the
reasons provided by the Minister. In subsequent cases, the Respondent has
addressed Grant #1, in suggesting the proper analytical framework that
ought to be applied by the Court when reviewing Minister’s decisions that
relay, in part, on paragraph 10(2)(a) of the ITOA.
[34]
That
framework involves a three-fold analysis. Firstly, are there circumstances
present that call for a more detailed explanation of the refusal by the
Minister? In Grant, there were three individuals involved in the offence
(the number being important insofar as the definition of criminal organization
offence in the Criminal Code requires an association of three or more)
two of whom had been accepted for transfer and the remaining individual, Grant,
had been refused. In those circumstances, Justice Barnes determined
that some explanation as to why the other offenders were accepted for transfer
and the applicant was not, was required. The decision of Justice Near in Grant #2
arguably diminishes the significance of this factor.
[35]
The
second aspect of the analysis is concerned with whether the assessment by the
others in the normal course of operations within CSC, substantially
differs from the Minister’s view. In Grant, CSC concluded that the
applicant had no links to organized crime, yet, the Minister was satisfied
there was sufficient information to warrant a refusal on the basis of the
applicant’s potential to commit a criminal organization offence. Justice Barnes
concluded that, in such a case, some further explanation might be required as
to why the Minister came to his conclusion.
[36]
In
Markevich v Canada (Minister of Public
Safety and Emergency Preparedness), 2011 FC 113, Justice Phelan appears to
concur with this view:
[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).
…
[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.
[37]
The
Court is of the view that such further explanation is only required in cases
where, upon a review of the record, it is not readily apparent that only one of
the positions can be reasonably supported.
[38]
The
final step in the framework is one of reviewing the record, the information,
and the circumstances surrounding the offence and the applicant, thus, to
determine whether there is an understanding of the reasonableness for the
Minister’s opinion that there is a risk of the applicant continuing in
organized criminal activity such that the objectives of the system cannot be
achieved through transfer. In reviewing the record, the definition of “criminal
organization offence” set forth in subsection 467.1(1) of the Criminal Code
must be borne in mind, as well as the exception provided under that definition
for individuals who are caught up in a “random gathering” that attempts to
seize an opportunity. Further, the circumstances of the offence and the role of
the applicant in the offence are at the forefront of this aspect of the
analysis.
[39]
In
the present case, the Minister took advice and chose to refuse the request on
the basis that the Applicant:
a. Was involved
in a large scale sophisticated criminal enterprise responsible for the
transportation and distribution of large amounts of illegal drugs across
international borders on multiple occasions;
b. Was described
as being “just below” the head of the Canadian arm of the organization;
c. At the time
of his arrest, was in possession of approximately $85,000.00 U.S. currency and
39 kilograms of cocaine;
d. Was
identified as having links to organized crime;
e. Had been
previously denied transfer by the U.S. on the basis of serious
concern relating to his criminal activity;
f.
Was
responsible for the transfer of currency and drugs within the organization.
[40]
The
Applicant also raises the issue of procedural fairness relying on the decision
in Balili v Canada (Minister of Public
Safety and Emergency Preparedness), 2011 FC 396. As is evident from paragraph
14 of the Reasons for Judgment in that matter, the Court determined Balili
on the basis of insufficient reasons. Following Singh v Canada
(Minister of Public Safety and Emergency Preparedness), 2011 FC 115, at
paragraphs 15 and 16 of its Reasons for Judgment (a case in which none of the
authorities had identified circumstances indicating a link to a criminal
organization) the Court in Balili found that there was a complete absence
of any information elsewhere in the record, other than the information
contained in the CSC assessment, that could raise a concern regarding the applicant’s
involvement with a criminal organization (Balili at para 9 and 12). As
the CSC assessment had not been shared with the applicant, the Court found that
a breach of procedural fairness had occurred.
[41]
In
the present case, there was abundant material available within the U.S. Certified
Case Summary that related to the criminal organization factor, paragraph 10(2)(a)
of the ITOA. Contrary to the suggestions of the Applicant, that material
was in fact shared with the Applicant by the U.S. authorities prior to any
decision being made by the Minister. The letter of the U.S. authorities,
dated August 31, 2009, was copied to the Applicant. There was information in
the record, other than that contained in the CSC assessment that raised
concerns relating to the Applicant’s involvement in a criminal organization
upon which the Minister relied. As that information was shared with the
Applicant, no breach of procedural fairness has occurred in this matter.
V. Conclusion
[42]
The
Minister weighed the purposes of the ITOA, the positive and negative
circumstances of the Applicant and the relevant factors.
[43]
In
these circumstances, the Respondent reached the decision that the objectives of
the international transfer of offenders system, those of protecting society and
rehabilitation, could not be as effectively achieved through transfer of the
Applicant to Canada.
[44]
A
factual foundation exists for the decision and the Minister was entitled to act
as he did. As a result, this Court defers to the decision as taken.
[45]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed with costs.
JUDGMENT
IT IS THIS COURT’S
JUDGMENT that the Applicant’s application for judicial review be
dismissed with costs.
“Michel M.J. Shore”
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