Docket:
T-291-13
Citation: 2013 FC 1142
Ottawa, Ontario, November 12,
2013
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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CHUCK SUN LAU
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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
[1]
The applicant, Mr Lau, a Canadian citizen, was
convicted in Australia in March 2008 of two offences: possession of a
commercial quantity of heroin and being knowingly concerned in the importation of
a commercial quantity of heroin. He is currently serving two concurrent
sentences of 25 years imprisonment.
[2]
On December 14, 2012, the Minister of Public Safety
and Emergency Preparedness [the “Minister”] refused to consent to Mr Lau’s
request to serve the remainder of his sentence in Canada pursuant to the International
Transfer of Offenders Act [the “ITOA”].
[3]
The applicant now seeks judicial review of the
Minister’s decision.
[4]
For the reasons that follow, the application is
dismissed.
Background
[5]
In March 1994 Mr Lau travelled to China, met with Mr Ho and made arrangements to deliver heroine from China to Australia. In April 1994, he travelled again to China and collected 47 kilograms of
heroine with a street value of $100,000,000 and with two accomplices delivered
the drugs to three sailors who he paid and instructed to transport the drugs to
Australia. Mr Lau travelled again to China in July 1994 to meet with Mr Ho
who instructed him to travel to Australia to collect the heroine. He did so and
took possession of the heroin on September 10, 1994. On September 12, 1994, Mr
Lau gave approximately 27.5 kilograms of heroin to a police informant who had
tipped off the Australian authorities to the transaction. On September 16,
1994, an accomplice was arrested and found in possession of approximately 9.4 kilograms
of heroin. On September 17, 1994 Mr Lau was arrested in Australia and held in custody.
[6]
On March 27, 1995, with the assistance of his
brother-in-law and a police officer in Australia, Mr Lau escaped custody prior
to his preliminary hearing and fled to Canada where he remained at large until his
arrest by the RCMP in June 1997.
[7]
Mr Lau was held in custody in Canada pending extradition to Australia. He resisted extradition for 10 years and ultimately surrendered
to Australian authorities in May 2007.
[8]
Mr Lau entered a guilty plea and was convicted
of two offences in March, 2008 and sentenced to two concurrent terms of 25
years in prison. The commencement of his sentence was backdated to December 31,
2001.
[9]
In October 2009 Mr Lau requested a transfer to Canada to serve the remainder of his sentence pursuant to the ITOA.
[10]
The Correctional Service of Canada [“CSC”]
Community Assessment report indicates that if the applicant is not transferred
he will be deported from Australia back to Canada on December 30, 2017. This is
based on the administration of the Australian sentence. Upon his return, he
would not be subject to supervision and there would be no record in Canada of his foreign conviction.
[11]
However, if Mr Lau were to be transferred
pursuant to the ITOA, the CSC would conduct a risk and other
assessments, develop a correctional plan and determine where he would be held
in custody. His transfer date would become his eligibility date for day and
full parole, and his statutory release date would be October 25, 2021.
Decision under Review
[12]
The Minister considered the transfer request
under the Act as it existed at the time of Mr Lau’s application. (The ITOA has
subsequently been amended).
[13]
The Minister refused the applicant’s request to
the transfer because the transfer would not contribute to the administration of
justice, including public safety and security in Canada.
[14]
The Minister referred to the purpose of the Act
and indicated that he had examined the facts and circumstances in that context
and had examined the specific factors set out in section 10. The Minister
indicated that he had considered the entire record, including the submissions
of the applicant and the letter from the applicant’s sister.
[15]
The decision reiterated the facts based on the
Australian sentencing decision, as summarised above.
[16]
With respect to the negative factors, the
Minister referred to the Australian sentencing transcript in which the judge
indicated that Mr Lau played a leading role in a well-organized conspiracy to
import and distribute heroine and that he was a major drug trafficker for
personal gain and that “[s]omeone valued your freedom sufficiently to make
these arrangements”, in reference to Mr Lau’s escape.
[17]
The Minister also noted the applicant’s escape
from custody in 1995, his arrest in Canada in 1997, his resistance to
extradition for 10 years, the CSC assessment which indicated that Mr Lau had 10
accomplices, the seriousness of the offence, the significant sentence imposed,
and also that Mr Lau had served 11 years of the 25 year sentence.
[18]
With respect to more favourable factors, the
Minister referred to the Australian sentencing transcript which indicates that
Mr Lau cooperated with authorities upon his return to Australia resulting in the identification of the three sailors and that he received a
reduced sentence for his cooperation and for his guilty plea. The Minister also
mentioned the Australian International Transfer report which indicates that Mr
Lau has been of good conduct and has enrolled in programs.
[19]
In addition, the Minister referred to the
material prepared by CSC including the Executive Summary which indicates that
Mr Lau has no criminal record in Canada or outstanding charges in Australia and
the CSC Community Assessment which canvassed the family support for Mr Lau’s
return and the impact on Mr Lau’s family, particularly his elderly parents who
take care of his children, one of whom is autistic. The Minister observed,
however, that Mr Lau’s family knew little about his offence.
[20]
The Minister acknowledged CSC’s assessment that
the information does not lead one to believe that Mr Lau would commit a
criminal organization offence but clearly indicated that he had reached a
different conclusion on the facts:
“Mr. Lau was
involved in an organized and sophisticated operation; he played, according to
the sentencing judge, a ‘vital managerial role’ in the commission of major
trafficking offences ‘for personal gain’; large amounts of drugs and money were
involved; and approximately ten other individuals participated in the
commission of the offence. I have also taken into account certain information,
set out below, that leads me to believe that there is a significant risk that
Mr. Lau will, after the transfer, commit a criminal organization offence.”
[21]
The information referred to by the Minister
includes Mr Lau’s travel to China, the direction he took from Mr Ho, the role
he played in giving directions to the accomplices, and his role in the delivery
and distribution of the heroine in Australia. The Minister noted that this led
him to the view that Mr Lau’s criminal activities made up a larger criminal
enterprise where illicit activities were well planned and executed resulting in
financial benefit. The Minister also concluded, based on the facts noted above,
that Mr Lau played a significant managerial role and held a position of trust
within the organization.
[22]
The Minister then stated:
“In my view, the
organized and sophisticated nature of the offence as well as Mr. Lau’s role in
the commission of the offence, combined with the fact that Mr. Lau was involved
in trafficking the shipment of drugs over the course of several months,
enhances the seriousness of the crime and create (sic) a significant risk that
Mr. Lau will engage in similar activities if returned to Canada. This factor
goes to the public safety of those in Canada, which is foremost in my mind.”
[23]
Mr Lau’s escape to Canada in 1995 indicated to
the Minister that Mr Lau did not abide by the laws of society and attempted to
flee justice, which in the Minister’s view, is not conducive to the process of
rehabilitation or reintegration into the community. This also suggested to the
Minister that Mr Lau continued to be involved with other criminal associates
who assisted with his escape. The Minister relied on these circumstances to
enhance his finding that there is a significant risk that Mr Lau will commit a
similar criminal organization offence after his transfer.
[24]
The Minister summarised the positive factors
which could favour a transfer including that Mr Lau eventually cooperated with
the Australian authorities, the CSC Executive Summary, and the Australian
report that indicates his good conduct in prison.
[25]
The Minister noted Mr Lau’s family situation and
that the separation from his children has adversely affected the children but
commented, as noted by the Australian sentencing judge that the separation is
as a result of his own actions. The Minister concluded that the risk to public
safety in Canada outweighs the benefits of his transfer for him and his family.
[26]
In conclusion, the Minister found that after
balancing the positive factors against the serious and organized nature of the
offence, the sentence imposed and his belief of the significant risk that Mr Lau
will engage in a criminal organization offence if transferred to Canada, the transfer “would not contribute to the administration of justice, including public
safety, in Canada.”
Issues
[27]
The applicant submits that the decision is
unreasonable because: the Minister failed to provide sufficient information
with respect to the basis for his opinion and violated the duty to act fairly
under section 7 of the Charter; the Minister only considered part of the
ITOA; there was insufficient evidence for the Minister to find that the
applicant “will” re-offend; and, the evidence showed that the applicant will
not re-offend.
[28]
The applicant further submits that the Court
should issue an order requiring the Minister to consent to the applicant’s
transfer request because there is no evidence on the record that there is a
significant risk that Mr Lau will commit a criminal organization offence after
transfer and it is not likely that any such evidence would come to light if the
application were reconsidered by the Minister. In other words, the record will
remain the same and if the decision is unreasonable, the appropriate remedy is
to direct the Minister to consent to the transfer.
Standard of review
[29]
In LeBon v Canada (Attorney General), 2012 FCA
132, 433 NR 310 [LeBon] the Federal Court of Appeal confirmed that
decisions of the Minister relating to requests for transfer under the ITOA
are to be reviewed under the reasonableness standard since it is “fact-specific
and discretionary in nature” (at para 15).
[30]
The Court held, at para 18, that reasonableness,
in this context, means “whether the Minister's
reasons allow the reviewing Court to understand why the Minister made his
decision and then to determine whether the Minister's conclusion was within the
range of acceptable outcomes.”
[31]
Where the standard of reasonableness applies,
the role of the Court is to consider the existence of justification,
transparency and intelligibility within the decision-making process, as well as
whether the Minister’s decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
Relevant Provisions of the ITOA
[32]
The purpose of the legislation is set out in
Section 3 of the Act, as it read at the time of the application:
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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.
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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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[33]
Section 10 sets out the factors that the
Minister is required to consider in deciding whether to approve a transfer
request. The provision below reflects the section as it read at the time of the
application:
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10. (1) In determining whether to consent
to the transfer of a Canadian offender, the Minister shall consider
the following factors:
(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.
[Emphasis added]
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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).
(Je souligne]
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Was the Minister’s decision reasonable?
[34]
The applicant, Mr Lau, broadly submits that the
decision is not reasonable and that the reasons do not reveal whether the decision
was made in conformity with the Minister’s statutory obligations because the
Minister focused only on paragraph 10(2)(a) of the ITOA and the
circumstances of the offence.
[35]
In the written submissions the applicant also
argued that the failure to provide sufficient information with respect to the
basis for the Minister’s opinion violated the duty to act fairly under section
7 of the Charter. This was not pursued in oral argument.
[36]
In particular, the applicant submits that the
Minister’s decision: was backward and speculative, focussing only on the index
offence which occurred 19 years ago; failed to take into account his good
behaviour in prison, the positive risk assessments, the programming and
monitoring by CSC and the Parole Board if he were transferred to Canada; failed
to explain why the advice of CSC was rejected or how public safety would be
served by denying the transfer instead of permitting the transfer so that CSC
could control and monitor his release in conjunction with the Parole Board.
[37]
The applicant notes that if he is not
transferred pursuant to the ITOA he will be deported back to Canada in
December 2017, without any conditions, restrictions or supervision and without
a Canadian criminal record.
[38]
The applicant also argues that there is insufficient
evidence to find that he “will” re-offend. He submits that the term “will” in
paragraph 10(2)(a) of the ITOA requires some certainty or, at minimum,
reasonable and probable grounds to believe that an offender will commit a
criminal organization offence.
[39]
The applicant submits that the CSC assessment
and the report from Australia and other evidence support a finding contrary to
that of the Minister; the transfer would achieve the purposes of the ITOA.
Therefore, the decision is not reasonable.
The relevant principles
[40]
There is a significant amount of jurisprudence
dealing with the reasonableness of the Minister’s decisions to refuse transfers
of offenders pursuant to the ITOA. The applicant and respondent both
cited many decisions of this Court to support their respective positions, many
of which can be distinguished on the facts, but the principles which have
emerged are not in dispute.
[41]
As a starting point, in LeBon,
at para 19, the Federal Court of Appeal confirmed that transfers
under the Act are a privilege for Canadian offenders who are incarcerated
outside of Canada and that there is no right to be returned to Canada to serve a sentence.
[42]
In Tangorra v Canada (Minister of Public
Safety and Emergency Preparedness), 2011 FC 1433, 401 FTR 246, Justice
O’Reilly reviewed the relevant principles from many of the same cases now
relied on by the applicant and respondent. Those that are relevant to the
present case include:
•
The Minister must consider the factors set out
in subsections 10(1) and (2) and may also consider other factors relevant to
the purposes of the Act (at para 7);
•
the Minister is statutorily required to give
written reasons and the jurisprudence has established that the reasons must
communicate the substance of the decision and the reason why the Minister
decided as he did (at para 20);
•
the Minister is free to disagree with the CSC
analysis or advice but must explain why he disagrees (at para 22);
•
where the Minister relies on evidence of an
alleged link to organized crime, he must make a finding pursuant to paragraph
10(2)(a) that the applicant will commit a criminal organization offence (at
para 23);
•
paragraph 10(2)(a) and its use of the term
“will, after the transfer, commit…a criminal organization offence” does not
require certainty of the applicant’s involvement in a criminal organization
offence; however, there must be evidence that leads the Minister to reasonably
conclude that a criminal organization offence will be committed by the
applicant after the transfer (at para 25);
•
the court must afford the Minister significant
deference, but the Minister’s decision must meet the reasonableness standard
(at para 21).
[43]
To those principles I would add Justice
Mactavish’s caution in Del Vecchio v Canada (Minister of Public Safety and
Emergency Preparedness), 2011 FC 1135, 398 FTR 75 that in assessing whether
the offender will commit a criminal organization offence, there must be a
meaningful examination of the offender’s past involvement with organized crime
and the ongoing ties of the individual to criminal organizations. In
other words, the focus can not be exclusively on the past conduct or the
offence which resulted in incarceration in the foreign country.
[44]
The most recent guidance comes from the Federal Court
of Appeal in LeBon. In that case, the Minister disagreed with the advice
of CSC and was of the opinion that the likelihood that Mr LeBon would commit a
criminal organization offence outweighed the positive factors. The Court found
that the Minister’s reasons were lacking, noting at paras 21-22, that:
[21] However,
what the reasons leave unanswered are:
i. On what basis did the Minister depart from the CSC’s advice?
ii. How did the Minister assess the
relevant factors so as to conclude that the factors which did not favor Mr. LeBon’s return outweighed those which favored his
return?
[22] Dealing with the first unanswered
question, in my view there is no bright line test which determines what level
of explanation is required when the Minister disagrees with advice he has
received. Each case will depend upon the record before the Minister. In some
cases the record may make it apparent why the Minister disagreed with the
advice he received. In such a case, little or no explanation would be required.
This, however, is not one of those cases.
[45]
And at para 25, the Court states that:
[w]here, as in the
present case, there are factors that support a transfer, the Minister must
demonstrate some assessment of the competing factors so as to explain why he
refused to consent to a transfer. Without such an assessment, the Minister’s
decision is neither transparent nor intelligible. Nor does the decision comply
with the statutory requirement imposed by subsection 11(2) that the Minister
give reasons.
The Minister’s decision meets the reasonableness standard
[46]
After considering the applicant’s submissions
and the principles from the jurisprudence, the issue to address is whether the
Minister’s decision to refuse the transfer based on his opinion that Mr Lau
poses a significant risk of committing a criminal organization offence if
returned to Canada is reasonable given the advice of CSC and the other evidence
on the record that Mr Lau is doing well in prison and does not pose a risk of
re-offending.
[47]
Bearing in mind that there is no “bright line’
test, I have considered whether the reasons explain why the Minister did not
take CSC’s advice and how the Minister conducted his assessment to conclude
that the factors favouring Mr Lau’s return were outweighed by those which did
not. In addition, I have considered whether the reasons reveal that the
Minister considered Mr Lau’s past and ongoing ties to organized criminal
activity in reaching the opinion that Mr Lau would commit a criminal organization
offence after his transfer to Canada rather than only Mr Lau’s index offence.
[48]
In my view, the Minister’s decision in this case
demonstrates that he has made an effort to follow the guidance provided in the
jurisprudence. The decision is carefully worded to address the criteria of the
Act, to show some assessment of the competing factors, to explain why the
Minister departed from the advice of CSC and to link the past offence with
subsequent conduct to inform the Minister’s belief that Mr Lau will commit a criminal
organization offence after the transfer. However, apart from using the correct
words and references, there must be some substance to the decision.
[49]
As noted by Justice Barnes in Goulet v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 65, 403 FTR 234
at para 12:
[a] decision that
contains nothing more than the recitation of a few relevant facts and a bare
conclusion is not one that is legally defensible under the Act … Indeed, it is
impossible to tell from these reasons what factors caused the Minister to deny
[the application].
[50]
In that case the Minister disagreed with the CSC
assessment and listed the factors in favour and against the applicant’s
transfer request. The Minister noted the purposes of the ITOA; the crime
and the number of accomplices, the large quantities of marijuana (approximately
45 kilograms) and the sophistication of the operation; as well as the role of
the applicant as a “senior participant” who had coordinated and organized drug
trips in the past. The Minister also acknowledged the applicant’s family ties
and support and his medical issues.
[51]
Justice Barnes added at para 15:
[i]t is not enough to
say that the statutory factors have been considered. Some assessment of the
evidence is necessary for the Court to determine if the ultimate conclusion is reasonable
in the sense that it was actually based on the relevant statutory
considerations. The acceptance as sufficient of a bare conclusion would
immunize every decision from effective judicial review and permit
administrative decisions that are arbitrary or capricious.
[52]
In the present case, the Minister’s reasons do
more than list the factors and provide a bare conclusion.
[53]
The Minister referred to the factors in section
10 and other relevant factors and provided some explanation why he believes
that Mr Lau will commit a criminal organization offence if returned and why he
believes that the positive factors are outweighed by the negative factors and
which support his view that public safety is the paramount or overriding
concern.
[54]
The Minister acknowledged that he had reached a
different conclusion than that provided in the CSC Assessment Report and
Executive Summary and he offered an explanation why he departed from that
advice. The Minister's reasons do allow me to
understand why the Minister made his decision.
[55]
Considering that deference is owed to the
Minister as long as the decision meets the reasonableness standard and
considering that the role of the Court is not to reweigh the factors and make
the decision it would prefer to make, I am led to the conclusion that the
Minister’s decision falls within the range of acceptable outcomes.
[56]
The ITOA gives the Minister the
discretion to consent to a transfer and guides the exercise of that discretion
by setting out factors for consideration. As noted, the Minister is not limited
to consideration of those factors and can take into account other relevant
factors related to the purpose of the Act.
[57]
The Minister acknowledged that that purpose of
the ITOA is to contribute to the administration of justice and stated
that this includes public safety and security as well as the rehabilitation and
reintegration of offenders.
[58]
The Minister considered all of the
relevant factors set out in section 10 of the ITOA. In particular, the
Minister considered the information obtained by CSC that the applicant’s return
to Canada would not pose a threat to the security of Canada; that CSC confirmed that the applicant
has supportive family ties; and that the CSC Assessment concluded that there is
no information leading one to believe that the applicant would commit a
terrorism or criminal organization offence pursuant to paragraph 10(2)(a). The
Minister noted, however, that the Australian judge had found that the applicant
played a vital managerial role in the crime.
[59]
The Minister explained why he disagreed with
CSC’s finding that the applicant would not commit a criminal organization
offence after the transfer. He identified the bases for his belief: first, the
seriousness of the crime and the applicant’s role in it; and second, the
applicant’s subsequent conduct, particularly his escape from custody in Australia.
[60]
The Minister’s reasons indicate that public safety
was foremost in his mind. The reasons indicate that the nature and
circumstances of Mr Lau’s index offence create the significant risk that he
will engage in such activities if returned, which in turn relates to public
safety. I note that public safety was not a specific factor in section 10 or
in the purpose of the ITOA in section 3 prior to the 2012 amendments.
However, public safety is an additional and relevant factor which the Minister
is entitled to consider, and he appears to have placed significant weight on
it.
[61]
The Minister also considered other relevant
factors, particularly: the applicant’s involvement in a large criminal
enterprise that was sophisticated and well-planned, covered three continents,
and involved a large amount of drugs; the applicant’s “vital managerial role”
and position of trust he held in the operation; the significant sentence
imposed; and, his escape to Canada with the assistance of an Australian police
officer.
[62]
The Minister’s opinion was influenced heavily by
the organization and sophistication of the offence and the applicant’s role in
the operation. The Minister specifically noted the Australian judge’s comment
at the sentencing of Mr Lau about his escape from custody in 1994, that
“someone valued your freedom sufficiently to make these arrangements”.
[63]
In coming to the belief that Mr Lau will commit
a criminal organization offence, the Minister relied on the fact that Mr Lau
escaped, noting that he did not abide by the laws and that this is not
conducive to rehabilitation or reintegration.
[64]
As noted in Del Vecchio, predicting the
future with certainty is not possible. The Minister’s reasons must, however,
demonstrate a forward looking analysis and a “meaningful examination” of the
past involvement and ongoing ties of the offender to organized crime (at para
53).
[65]
Relying only on the index offence would make it
almost impossible for anyone to succeed in returning to Canada. On the other hand, where an offender is incarcerated, there may be limited
opportunity to continue to liaise with past associates and hopefully no
opportunity to engage in organized criminal activity outside of the prison.
Therefore the circumstances of the index offence, along with other
considerations could support the Minister’s belief, as it does here.
[66]
The information from CSC and Australia did not indicate that Mr Lau continued to have any contact with past associates.
[67]
The Minister did not solely rely on the index
offence, which occurred in 1994, to form his belief. The Minister linked Mr
Lau’s conduct subsequent to the offence, including his escape, assisted by
others, and flight to Canada coupled with the circumstances of the index
offence, which was a very serious offence, involving a large quantity of drugs,
and a great deal of planning across three countries along with the significant
role played by Mr Lau.
[68]
Although the escape occurred in 1995, Mr Lau remained
at large in Canada until 1997 and his cooperation with Australian authorities
only began after his surrender in 2007. The Minister’s decision refers to the
past conduct as ‘enhancing’ the finding that there is a significant risk that
Mr Lau will commit a criminal organization offence in the future. While it may
appear to be a weak link, it is nonetheless an explanation of how the Minister
reached his belief and is based on the Minister’s assessment of the evidence
before him.
[69]
The Minister also considered the factors
favouring a transfer including: Mr Lau’s cooperation with authorities after his
extradition to Australia, his participation in a correctional program in
Australia and his good conduct in prison; the challenges faced by Mr. Lau’s
family given the declining health of his elderly parents; and, the negative
impact of his separation from his children, particularly on his eldest son who
is autistic.
[70]
In reaching his decision, the Minister weighed
the factors in favour of a transfer against the serious nature of the offence,
the sentence and his belief that there is a significant risk that Mr Lau will
engage in an organized crime offence and concluded that a transfer would not
contribute to the administration of justice, including public safety in Canada.
[71]
As the applicant noted, the Minister did not
specifically acknowledge that if Mr Lau is not transferred pursuant to the ITOA,
he will be deported back to Canada in 2017 and he will not be subject to any
supervision. However, if he is transferred, he would continue to be under
sentence until 2021 and if he is granted parole, he would remain under
supervision until that date.
[72]
The Minister is presumed to be aware of this fact as it
was noted in the material provided to him by CSC.
[73]
Although a transfer may be in the long term best
interests of both Mr Lau and the public safety of Canada, as he would remain
under sentence until 2021 and either incarcerated or under the supervision of
CSC, the issue for the Court is whether the Minister’s decision refusing Mr
Lau’s transfer at the current time falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir).
The role of the Court is not to substitute a decision that it would prefer.
No Mandatory Order
[74]
Because I have found that the Minister’s
decision is reasonable there is no need to address the applicant’s submission,
relying on LeBon v Canada (Minister of Public Safety and Emergency
Preparedness), 2013 FCA 55, 444 NR 93, that the Court should order the Minister
to approve the applicant’s transfer request.
[75]
While the Court has the jurisdiction to grant
such an order, as confirmed by the Federal Court of Appeal, this is an
exceptional remedy.
[76]
Moreover, as noted by Justice Mactavish in Freeman v
Canada (Minister of Citizenship and Immigration), 2013 FC 1065,
[2013] FCJ No 1148 at para 78:
Section 18.1(3)(b) of
the Federal Courts Act provides that this Court may refer a matter back
to a decision-maker with such directions as the Court may consider appropriate.
While this includes directions in the nature of a directed verdict, “this is an
exceptional power that should be exercised only in the clearest of
circumstances”: Rafuse v. Canada (Pension Appeals Board), [2002] F.C.J.
No. 91 at para. 14, citing Xie v. Canada (Minister of Employment and
Immigration) (1994), 75 F.T.R. 125, [1994] F.C.J. No. 286, at paragraph 18.
Conclusion
[77]
The Minister’s decision is reasonable when
measured by the Dunsmuir standard and by the LeBon standard, as
noted above. The Minister's reasons do allow the
Court to understand why the Minister made his decision and to determine whether
the decision was within the range of acceptable outcomes.
[78]
The Minister exercises discretion in consenting
or refusing transfers pursuant to the ITOA. The Minister was not bound
by the CSC Assessment and was entitled to come to a different conclusion which
he explained based on his assessment and weighing of the statutory and other
relevant factors. Although there was evidence to support Mr Lau’s transfer to Canada the Minister set out the evidence he relied on in reaching a different conclusion.
Again, it is not the role of the Court to reweigh the evidence or remake the
decision that the Court may prefer and which would also be in accordance with
the purpose of the Act. I do not find any errors in the factors considered by
the Minister in forming his belief or in his assessment of the competing
factors which led to his conclusion that the transfer would not contribute to
the administration of justice in Canada.
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