Date: 20080825
Docket: T-817-07
Citation: 2008 FC 965
Ottawa, Ontario, August 25, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
AREND
HENDRIK GETKATE
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review concerns two decisions of the Minister of
Public Safety and Emergency Preparedness (the Minister) dated March 20, 2007
and October 23, 2007, respectively. In the decisions the Minister refuses a
request by the applicant, a Canadian citizen incarcerated in the United States,
to serve his prison sentence in Canada under the terms of the International
Transfer of Offenders Act, S.C. 2004, c. 21 (the Act). The applicant
challenges both the merits of the Minister’s decision and the constitutionality
of the Act. Specifically, the applicant argues that paragraphs 10(1)(a) and (b)
of the Act unconstitutionally violate his mobility rights under section 6 of the
Canadian Charter of Rights and Freedoms (the Charter).
FACTS
Background
[2]
The
applicant, Arend Hendrik Getkate, is a 24-year-old Canadian citizen born in Belleville, Ontario. In February
1996, the applicant moved with his mother to Hampton, Georgia
where she was married later that year. The applicant continued to reside in Georgia with his
mother and step-father until he graduated from high school in May 2000. In
August 2000, the applicant returned to Canada for
approximately six months, during which time he lived with his aunt and uncle in
Plainfield, Ontario. In
February 2001, the applicant moved back to Georgia, attending
post-secondary studies at Clayton State College and University.
[3]
On
August 19, 2002, the applicant was arrested and charged in Georgia with three
counts of aggravated child molestation and one count of child molestation. On
June 2, 2003, the applicant was convicted and sentenced to 30 years
imprisonment on the three counts of aggravated child molestation and ten years
consecutive on the remaining count. The sentence provided that upon serving 10
years in prison with respect to the three counts of aggravated child
molestation, the remainder of the applicant’s sentence would be served on
probation. An appeal of the applicant’s conviction and sentence was dismissed
on September 13, 2004.
The applicant’s request
and the Minister’s denial
[4]
By
application dated March 1, 2005, the applicant requested, pursuant to the
provisions of the Act, that he be transferred to Canada to serve the
remainder of his prison sentence. Under the terms of the Act, a transfer can
only occur with the consent of the offender; the foreign (in this case
American) entity; and Canada. The applicant’s request for a transfer
was approved by the Georgia Department of Corrections on January 19, 2006, and
by the United States Department of Justice on June 22, 2006.
[5]
However,
consent has been denied by Canada through the Minister. As part of the
applicant’s request, a report was produced by Correctional Service Canada (CSC)
to determine whether the applicant satisfied the provisions of the Act. The
relevant portion of the report states:
The probation of 30 years, to be served
upon completion of the sentence of imprisonment, cannot be administered in Canada as it follows a period of
incarceration of more than two years.
Mr. Getkate’s citizenship has been
verified and confirmed by the Canadian Consulate General in Atlanta, Georgia.
His request to transfer was approved by
the state of Georgia on January 19, 2006 and by
the Department of Justice on June 22, 2006.
Mr. Getkate has never been transferred
under the [Act].
Mr. Getkate did not leave or remain
outside Canada with the intention of abandoning Canada as his place of residence. Community
assessments completed with his grandparents, aunts, uncles and family friends
between April and May 2005 and again on August 6, 2006, confirm that he still
has strong social and family ties to Canada.
His grandparents will offer him emotional and financial support as well as
accommodation upon his release. All others are prepared to offer varying levels
of support for the purpose of a transfer.
Furthermore, while incarcerated, Mr.
Getkate was involved in intensive therapy and psychosexual education for a full
year at his own expense.
The information obtained to date does not
lead us to believe that, he would after the transfer, commit an act of
terrorism or a criminal organization offence within the meaning of section 2 of
the Criminal Code, nor that he would constitute a threat to the security
of Canada.
According to Section 3 of the International
Transfer of Offenders Act, “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 them to serve their sentences in
the country of which they are citizens or nationals.
The transfer of Mr. Gatkate will
facilitate and enhance his eventual reintegration into the community through appropriate
programming, including gradual and supervised release under the jurisdiction of
the Correctional Service of Canada. Should a transfer not be granted, Mr.
Getkate will be deported to Canada as early as April 18, 2013, and will not be under the
jurisdiction of the Correctional Service of Canada and will not be subject to any
supervision requirements or restrictions.
[Emphasis added.]
The report was approved on
November 22, 2006 by Julie Keravel, Director, Institutional Reintegration
Operations, CSC.
[6]
Despite
the recommendation contained in CSC’s report, on March 20, 2007 the Minister
denied the applicant’s request for a transfer. The reasons provided by the
Minister, which are included in the report under the heading “Ministerial
decision,” are as follows:
·
The nature
of the offences indicates the offender’s return to Canada would constitute a
potential threat to the safety of Canadians and the security of Canada.
·
There is
no evidence to suggest the offender’s risk has been mitigated through
treatment.
The Minister’s decision
was communicated to the applicant by letter dated March 30, 2007 from Ms. Keravel
at CSC. The applicant was also told that should he wish to submit further information
in support of a new application, he was entitled to do so at any time.
The
applicant’s second request and the Minister’s denial
[7]
Subsequently,
the applicant submitted a second request that he be allowed to serve the
remainder of his prison sentence in Canada. Accordingly, a second
report and recommendation were produced by CSC to determine whether the
applicant satisfied the conditions of the Act. That report, which is virtually
identical to the first report, was approved by Ms. Keravel at CSC on May 14,
2007. On May 15, 2007, the report was forwarded to the Minister for
consideration.
[8]
On
October 23, 2007, the Minister again denied the applicant’s request. The
reasons provided include the same two reasons contained within the first
denial, as well as a finding that the applicant “abandoned Canada as his place
of permanent residence.” The reasons read as follows:
·
The nature
of the offences indicates the offender’s return to Canada would constitute a potential threat to
the safety of Canadians and the security of Canada.
·
There is
no evidence to suggest the offender’s risk has been mitigated through
treatment.
·
There
is evidence the offender abandoned Canada as his place of permanent residence.
[Emphasis added.]
The Minister’s decision
was communicated to the applicant by letter dated November 1, 2007.
ISSUES
[9]
The
applicant challenges both the merits of the Minister’s decision as well as the
underlying constitutionality of paragraphs 10(1)(a) and (b) of the Act.
Accordingly, there are two issues to be addressed by the Court:
1. Does the
applicant, as a Canadian citizen, have a constitutional right by virtue of
subsection 6(1) of the Charter, to have his prison sentence transferred
to Canada upon consent being obtained from the American authorities; and
2. On the
circumstances of this case, did the Minister err under section 10 of the Act in
refusing to grant the applicant’s request that he be able to serve the
remainder of his prison sentence in Canada?
STANDARD OF REVIEW
[10]
In
assessing the appropriate standard of review to apply to the Minister’s denial
of the applicant’s request, I am guided by the recent Supreme Court of Canada
decision in Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1.
In that case, the Supreme Court reconsidered the number and definitions to be
given to the various standards of review, as well as the analytical process to
be employed to determine the appropriate standard in a given situation. As a
result of the Court’s decision, it is clear that the standard of patent
unreasonableness has been eliminated, and that reviewing courts must focus on
only two standards, those of correctness and reasonableness.
[11]
In
Dunsmuir, the Supreme Court held at paragraph 62 that the first step in
a standard of review analysis is to ascertain whether previous jurisprudence
has determined adequately the appropriate standard to apply in a given
situation. In Kozarov v. Canada (Minister of Public
Safety and Emergency Preparedness), 2007 FC 866, [2007] F.C.J. No. 1132 (QL),
Mr. Justice Harrington was faced with a similar issue under subsection 10(b) of
the Act. In that case, Justice Harrington held that a discretionary decision of
the Minister, such as the one currently before the Court, is entitled to the
“highest standard of deference,” and should only be set aside if found to be
patently unreasonable. Accordingly, while the standard of patent
unreasonableness has been eliminated by the Supreme Court in Dunsmuir,
the Minister’s decision is entitled to significant deference and will be reviewed
on a reasonableness standard.
[12]
With
respect to the constitutionality of the Act, this is a question of law to be
reviewed on a correctness standard.
LEGISLATIVE FRAMEWORK
[13]
The
legislation relevant to this application is the International Transfer of
Offenders Act. Under the Act, a Canadian offender – defined as a Canadian
citizen who has been found guilty of an offence and whose conviction and
sentence is no longer subject to appeal – may request to have his or her
sentence transferred to Canada. Subsection 8(1) provides that the consent
of the three parties to the transfer is required before a transfer can occur:
|
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.
|
[14]
Consent
by Canada is to be granted or
denied by the Minister, who under subsection 6(1) is responsible for the Act’s administration.
In deciding whether to consent to a transfer, the Minister must consider a
number of factors, which are outlined in subsections 10(1) and (2) of the Act:
|
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.
(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.
|
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.
(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).
|
[15]
Also
relevant to this application is subsection 6(1) of the Canadian Charter of
Rights and Freedoms, which provides all Canadian citizens with a
right to enter, remain in, and leave Canada:
|
6. (1)
Every citizen of Canada has the 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.
|
ANALYSIS
Issue No. 1: Does the
applicant, as a Canadian citizen, have a constitutional right by virtue of
subsection 6(1) of the Charter, to have his prison sentence transferred
to Canada upon consent being obtained
from the American authorities?
[16]
As
noted above, the applicant challenges both the merits of the Minister’s
decision, as well as the underlying constitutionality of paragraphs 10(1)(a)
and (b) of the Act, which state that in determining whether to consent to a
transfer, the Minister must consider whether the offender’s return would
constitute a threat to the security of Canada, and whether the offender left the
country with the intention of abandoning Canada as his or her place of
residence.
[17]
As
required by section 57 of the Federal Courts Act, the applicant served
notice on the Attorney General of Canada and the attorney general of each
province, of the constitutional question raised in this application.
[18]
In
regards to the applicant’s constitutional challenge, he submits that as a
Canadian citizen, he has a constitutional right to enter Canada by virtue of
subsection 6(1) of the Charter, and that right is violated by the
impugned provisions. Specifically, the applicant submits that as a result of
his constitutional right to enter Canada, once his transfer was approved by the
American authorities in accordance with the provisions of the Act and the Transfer
of Offenders Treaty between Canada and the United States of America, then his
constitutional right should have been given effect to promptly and he should
have been given the opportunity to return to Canada at the next available
reasonable time. On this basis, the applicant submits that the Minister’s denial
of his transfer request violated his right to enter Canada and that,
accordingly, the provisions engaged by the Minister in blocking the transfer are
unconstitutional and cannot be saved under section 1 of the Charter as
reasonable limits on the applicant’s section 6 right.
[19]
In
support, the applicant relies on the decision of this Court in Van Vlymen v.
Canada (Solicitor
General),
2004 FC 1054, 258 F.T.R. 1. In that case, Mr. Justice Russell was faced with a
similar situation wherein a Canadian offender requested a transfer to Canada under the
terms of the now repealed Transfer of Offenders Act, R.S.C. 1985, c.
T-15 (the former Act). In considering whether the applicant’s section 6
mobility rights were engaged, Justice Russell stated at paragraphs 97 and 100:
¶ 97 As a Canadian citizen, and
notwithstanding his conviction in the United States, the Applicant retained his
constitutional rights under s. 6(1) of the Charter. Those rights were subject
to the practical limitations imposed by the US authorities and the need for
their approval before he could return. They were also subject to whatever
limitations s. 1 of the Charter may allow Parliament to impose by way of “such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.”
[…]
¶ 100 While he remained incarcerated in the US, the Applicant’s s.
6 rights remained unenforceable until such time as the US approved his transfer. But
they did not cease to exist and, once a transfer was possible and the Applicant
decided to exercise them in the limited fashion available to him, they came to
the fore and the Minister was required to recognize them in whatever action, or
inaction, he engaged in concerning the Applicant’s transfer. In my opinion, the
international regime for the transfer of prisoners back to Canada does not displace
Mobility Rights under the Charter. The regime exists to allow those Charter
rights to be exercised, albeit in the limited context of continuing
incarceration.
[20]
While
Justice Russell concluded that the transfer process engaged the applicant’s
section 6 Charter right to enter Canada, the factual
circumstances of the case must also be considered. In Van Vlymen,
Justice Russell was faced with a situation wherein the Minister (at that time
the Solicitor General) failed to make a decision on the applicant’s transfer
request for roughly ten years. As Justice Russell stated at paragraph 80 when
addressing the context of the matter before the Court:
¶ 80 The real “matter” that is the focus of
this application is not, in my opinion, the March 1, 2000, decision by the
Respondent approving the Applicant’s return to Canada to serve out his prison
sentence; it is, rather, the roughly ten years of procrastination,
evasiveness, obfuscation and general bad faith by the Respondent that ensured
the Applicant remained in the U.S. prison system as long as possible, and
that postponed the transfer decision in favour of the Applicant until formal
legal proceedings were commenced against the Respondent on February 3, 2000.
[Emphasis added.]
[21]
Accordingly,
while Justice Russell found that the applicant’s section 6 mobility rights were
engaged by the process, no consideration was given to whether the provisions of
the former Act could be seen as reasonable limits, prescribed by law,
demonstrably justified in a free and democratic society, and therefore saved
under section 1 of the Charter. The fact that Justice Russell’s decision
is primarily focussed on the lack of consideration by the Minister is readily
apparent in his analysis of the applicant’s Charter argument at
paragraphs 106-109:
¶
106 My review of the record leads me to the conclusion that the impugned
Regulations were never used to refuse the Applicant a transfer back to Canada.
What happened, rather, was that the Respondent never told the Applicant why a
decision had not been made and kept him in the dark concerning the objections
that had been raised about his transfer.
¶
107 Hence, it is difficult to characterize the role that the impugned
Regulations played in this matter. On the one hand, it might be said that
such a long delay was, in effect, a decision to refuse the transfer request. …
¶
108 On the other hand, we could say that the Respondent’s conduct was, in
effect, a refusal to apply the Regulations and make a decision. The Respondent
made a decision and applied the Regulations in March 2000, at which time the
Regulations did not stand in the way of the Applicant’s transfer.
¶
109 On the whole, I am inclined to think that the Respondent’s conduct under
review was a refusal to make a decision in accordance with the Regulations and
the Applicant’s Charter rights. Hence, I do not believe that the
constitutionality of the Regulations arises on these facts.
[Emphasis added.]
[22]
In
arguing that the applicant’s reliance on Van Vlymen is misplaced, the
respondent relies on the recent decision of this Court in Kozarov,
above, wherein Justice Harrington addressed the applicability of Van Vlymen
to a situation similar to the one currently before the Court. As Justice
Harrington stated at paragraph 34 of Kozarov:
¶ 34 I do not think that the decision of Mr.
Justice Russell in Van Vlymen, above, assists Mr.
Kozarov. Although he held that Mr. Van Vlymen, as a Canadian citizen, had the
constitutional right by virtue of section 6 of the Charter to enter Canada
provided he remained incarcerated, subject only to his securing the approval of
the U.S. authorities, and such reasonable limits as Parliament might prescribe
by law, and can be demonstratively justified in a free and democratic society as
per section 1 of the Charter, the facts of that case have to be carefully
considered. The Minister was found to have neglected or to have deliberately
failed to consider Mr. Van Vlymen’s request for transfer for close to ten
years. In [addition] to breaching the Charter, it was held that the Minister
breached his common law duty to act fairly in processing Mr. Van Vlymen’s
application.
[Emphasis added.]
[23]
Accordingly,
the respondent argues that when considering the factual circumstances arising
in Van Vlymen, above, it is clear that the case is distinguishable on
its facts and that the decision in Kozarov provides better guidance with
respect to the interplay between section 6 of the Charter and the
provision of the Act. I agree.
[24]
In
Kozarov, the applicant’s request for a transfer was denied by the
Minister under paragraphs 10(1)(b) and (c) of the Act, which relate to whether
the offender left Canada with the intention of abandoning the country as his
place of permanent residence and whether the offender has social or family ties
in Canada. On the
basis of the evidence, the Minister concluded that the offender had, in fact,
abandoned Canada as his place
of permanent residence and did not have sufficient family ties in Canada to justify a
transfer. In reviewing the impact of the decision on the applicant’s Charter
mobility rights, Justice Harrington held at paragraphs 27-28 that neither
paragraphs 10(1)(b) and (c), nor section 8 of the Act, offended the applicant’s
mobility rights:
¶ 27 Mr.
Kozarov’s current restrictions on his mobility arise from his own actions, his
own criminal activities. A natural and foreseeable consequence of a criminal
conviction is that the state in which the offence is committed and in which the
offender may be found may incarcerate him. Once Mr. Kozarov serves his
sentence, he has the absolute right, as a citizen, to return here. The same
holds true if his current sentence were commuted, or if he were pardoned. All
citizens, unlike foreigners and permanent residents, have that constitutional mobility right
(see Catenacci v. Canada
(Attorney General),
2006 FC 539, 144 C.R.R. (2d) 128).
¶
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.
[25]
Justice
Harrington went on to consider the differences between a transfer under the Act
and an extradition to the United States under the terms of the Extradition
Act, S.C. 1999, c. 18. In comparing the two processes, Justice Harrington relied
on the decision of the Supreme Court of Canada in United States of America
v. Cotroni, [1989] 1 S.C.R. 1469, concluding that while matters of
extradition clearly affect a citizen’s mobility rights, the transfer of a
prison sentence does not engage an offender’s mobility rights at all. He held
at paragraphs 30-32:
¶
30 Extradition affects a citizen’s right to remain in Canada, and so
brings section 6 of the Charter into play. The State is active in such cases,
not passive as in this. In United States of America v.
Cotroni, [1989] 1 S.C.R. 1469, [1989] 48 C.C.C. (3d) 193, the
constitutional questions were whether the surrender of a Canadian citizen to a
foreign state constituted an infringement of his right to remain in Canada, and
if so, would a surrender in the circumstances of that case constitute a
reasonable limit under section 1. The United
States requested Mr. Cotroni’s extradition
on a charge of conspiracy to possess and distribute heroin. However, all his
personal actions relating to the alleged conspiracy took place while he was in Canada.
¶ 31 The
Court held that Mr. Cotroni’s mobility rights were affected, but the relevant
provisions of the Extradition Act were saved by
section 1. To my way of thinking, the key to that case is at page 1480 where Mr. Justice
La Forest said:
The right to remain
in one’s country is of such a character that if it is to be interfered with, such
interference must be justified as being required to meet a reasonable state
purpose.
However,
he went on to say at page 1482:
An accused may return
to Canada following his trial
and acquittal or, if he has been convicted, after he has
served his sentence. The impact of extradition on the rights of a
citizen to remain in Canada appears to me to be of secondary importance. In fact, so far as
Canada and the United States are concerned, a person convicted may, in some cases, be
permitted to serve his sentence in Canada; see Transfer of Offenders
Act, S.C. 1977-78, c. 9. …
That
Act was replaced by the current International Transfer of
Offenders Act.
¶
32 In this case, it was Mr. Kozarov who chose to leave Canada and to commit
a crime in the United States. He has the absolute mobility right, as a Canadian
citizen, to return to Canada once his sentence is served. 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.
Mobility
rights
[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.
[28]
The
applicant’s mobility rights under section 6 of the Charter include entering Canada, remaining
in Canada and leaving Canada. Obviously these Charter rights are restricted
while the applicant is incarcerated either in the United States or Canada.
[29]
Moreover,
Canada’s consent to
the transfer under the Act must respect the international treaty agreements
which only allow transfers to provide for the better rehabilitation of the
prisoner. Therefore Canada cannot automatically consent to the transfer
without considering if it will serve the object of the international agreement
for the better rehabilitation of the prisoner.
Issue
No. 2: Did the Minister err under section 10 of the Act in refusing to
grant the applicant’s request that he be able to serve the remainder of his
prison sentence in Canada?
[30]
Turning
to the merits of the Minister’s decision, the issue before the Court is whether
that decision was reasonably based on the evidence before the Minister, or
whether the decision to deny the applicant’s transfer was made without regard
to that evidence, thereby making it unreasonable.
[31]
As
noted at the outset, the Minister rendered two decisions regarding the
applicant’s request for a transfer; the first on March 20, 2007 and the second,
following a further request by the applicant, on October 23, 2007. In
considering the two decisions together, the decisive factors leading to the
Minister’s denial were that:
1.
the
applicant’s return threatens the safety of Canadians and the security of Canada;
2.
there is
no evidence the applicant’s risk has been mitigated through treatment; and
3.
the
applicant abandoned Canada as his place of permanent
residence.
[32]
In
addition to the applicant’s personal statement and accompanying letters of
support, the following evidence was before the Minister when he made the
above-mentioned decisions:
1. the reports
from CSC approved by Ms. Keravel on November 22, 2006 and May 14, 2007,
respectively;
2. a memorandum
from “Roy & Sharif” classified as “Confidential” and dated January 16,
2007, which provides an overview of the applicant’s case and the considerations
to be made by the Minister; and
3. a memorandum
from “Sharif” (sic) classified as “Confidential” and dated March 15, 2007,
which outlines the nature of the applicant’s offences and advises the Minister
that a denial on the basis that the applicant poses a risk to the security of
Canada “would be consistent with public statements [the Minister] made on similar
issues.”
[33]
Having
reviewed this evidence, as well as the evidence proffered by the applicant and
his family, the Court concludes that while the Minister’s decision to not
consent to the transfer is discretionary in nature and is entitled to the
highest level of curial deference, the record clearly establishes that the impugned
decisions disregard the evidentiary record before the Minister and, for the
following reasons, must be set aside.
[34]
In
both decisions rendered by the Minister, it was concluded that there was “no
evidence” to suggest that the risk posed by the applicant has been mitigated
through treatment. The record clearly demonstrates, however, that the applicant
underwent a full year of intensive therapy and psychosexual education at his
own expense and that he is extremely remorseful for the crimes he committed. If
anything, this implies that the applicant was willing to voluntarily undertake
intensive treatment because of a desire to be rehabilitated.
[35]
Further,
the record demonstrates that applicant has accepted his sentence and has taken
accountability for his actions. This was recognized and noted in the memorandum
to the Minister from “Roy & Sharif” dated January 16, 2007, wherein it
states: “In the case of Getkate, the offender is relatively young and it
appears, excepting his ‘not guilty’ plea, that he has taken accountability for
his crimes.”
[36]
In
light of the foregoing evidence, which demonstrates that the applicant has both
undergone treatment and that the treatment has been well received, it is wholly
unreasonable for the Minister to have premised his decision on the view that
there was “no evidence” demonstrating the applicant’s risk had not been
mitigated during his time in custody.
[37]
Another
serious problem with the Minister’s decision relates to his conclusion that the
applicant’s transfer be denied because he “abandoned Canada as his place
of permanent residence.” This basis, while not present in the Minister’s first
decision, formed part of the reasons for the Minister’s denial in the second
decision, dated October 23, 2007. However, upon reviewing the evidence, that
evidence points in a wholly opposite direction.
[38]
First,
the CSC reports which recommended the Minister consent to the applicant’s
transfer, clearly state that the applicant continues to have strong social and
family ties in Canada and that he never abandoned the country as his
place of permanent residence:
Mr. Getkate did not leave or remain
outside Canada with the intention of abandoning Canada as his place of residence. Community
assessments completed with his grandparents, aunts, uncles and family friends
between April and May 2005 and again on August 6, 2006, confirm that he still
has strong social and family ties to Canada.
His grandparents will offer him emotional and financial support as well as
accommodation upon his release. All others are prepared to offer varying levels
of support for the purpose of a transfer.
[39]
Second,
there is also no suggestion of abandonment in the memorandum from “Roy &
Sharif” dated January 16, 2007. In fact, the memorandum, which was presumably
produced by members of the Minister’s staff, notes in its overview that the
applicant has a number of friends and family members in Canada willing to offer
their support should the transfer be approved. As well, in addressing the
factors for consideration under section 10 of the Act, the memorandum states
that outside paragraph 10(1)(a), which relates to the security of Canada, there
are no other grounds contained in the section that would result in a denial of
the applicant’s transfer:
In considering this case, you are guided
by the International Transfer of Offenders Act, the relevant portion of which
is attached for your convenience. With the possible exception of section
10(1)(a), it does not appear that your consideration of the criteria in section
10 would result in a denial of this transfer.
On this
basis, it is difficult to see what “evidence” the Minister is referring to.
[40]
Furthermore,
a simple consideration of the factual circumstances demonstrates that the
applicant never abandoned or intended to abandon Canada as his place
of permanent residence. As noted at the outset, the applicant first left Canada in 1996 when
he moved with his mother to Georgia. During this time the
applicant was a minor and cannot be said to have voluntarily left Canada. Upon
gaining the age of majority, the applicant returned to Canada in 2000,
albeit for only a protracted period of time. When he returned to the United
States
in February 2001, it was for the intended purpose of furthering his education
at Clayton State College and University, where he attended on a “full HOPE
scholarship.” Given such clear and unambiguous evidence to the contrary, the
Minister’s conclusion that the applicant abandoned Canada as his place
of permanent residence is unreasonable on its face and must be set aside.
[41]
Finally,
the Court also finds that there is no evidence on the record demonstrating that
the applicant constitutes a potential threat to the safety of Canadians or the
security of Canada. While the Minister
attempts to invoke the section as a means of demonstrating that the applicant
poses a general threat to Canadians should he be returned to Canada, use of the
phrase “threat to the security of Canada” has traditionally been limited in
other legislation to threats of general terrorism and warfare against Canada or
threats to the security of Canadians en masse. In the case at bar, while
the applicant may pose a general threat to specific pockets of Canadian society
should he re-offend, he clearly poses no “threat to the security of Canada” as
the term has been interpreted in other legislation, such as the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 or the Canadian Security
Intelligence Services Act, R.S.C. 1985, c. C-23. If the threat to Canada was the mere
risk that the offender would re-offend, then such a consideration could be
applied to every inmate seeking a transfer.
[42]
While
the Court recognizes the gravity of the applicant’s crimes and the harm that
they have caused, the issue here is whether approval of the applicant’s transfer
request would facilitate and enhance his eventual rehabilitation and
reintegration into Canadian society. As demonstrated by the evidence, such a
transfer would be in accordance with the purpose and provisions of the Act and
the decision of the Minister unreasonably disregarded this evidence.
[43]
The
Supreme Court stated in Dunsmuir at paragraph 47:
. . . 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.
[44]
In
the case at bar, the reasons articulated by the Minister are contrary to the
evidence and to the assessment and recommendations by his own department. The
Court must conclude that the decision cannot be justified or made intelligible
within the decision-making process.
[45]
Accordingly,
for the reasons provided, the application for judicial review will be granted,
the decision of the Minister set aside, and the matter referred back to the
Minister for redetermination in accordance with these Reasons.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This
application for judicial review is allowed with costs; and
2.
The
two decisions of the Minister are set aside and the matter is referred back to
the Minister for redetermination as soon as reasonably practicable.
“Michael
A. Kelen”
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