Docket: T-2132-13
Citation:
2015 FC 747
Ottawa, Ontario, June 12, 2015
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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NICOLAS
CHRISTOPHER JOSEPH TOSTI
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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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JUDGMENT AND REASONS
[1]
The Applicant is a Canadian citizen currently
incarcerated in Ohio who applied for transfer to Canada to serve the remainder
of his sentence in Canada. This application for judicial review is of the
Minister’s decision to deny the Applicant’s request for transfer of his
sentence pursuant to the International Transfer of Offenders Act, SC
2004 c 21 (“ITOA”).
[2]
The matter was heard in Toronto by video
conference with the Applicant being in Youngstown, Ohio and the Respondent’s
counsel in Ottawa. The Applicant represented himself but he was not allowed to
have his legal documentation with him. Despite that disadvantage, he was well
prepared and accurate in his memory of what the materials contained so the
matter proceeded as scheduled.
[3]
For the reasons below, I am granting this
application.
I.
Facts
[4]
As described in his Correctional Service Canada
(CSC) file summary and United States Department of Justice Case Summary, the
Applicant pled guilty and was sentenced to 10 years, with life supervised
release on May 14, 2010 for the offence “Attempt Enticement of a Minor to
Engage in Sexual Activity”. The projected release date in the United States is
February 2018.
[5]
The circumstances of the offence are that in May
2009, a United States federal officer posed as a 15 year old girl in an online
chat room and received communication from the Applicant. The Applicant asked
for pictures of the “girl” and asked her sexually explicit questions. The girl
told the Applicant that she was 15; the Applicant sent the girl videos of
himself masturbating and asked to meet her at a mall so he could teach her how
to have sex. After a phone call with a female federal officer posing as the
girl, the two agreed to meet.
[6]
The Applicant was arrested at the spot he agreed
to meet the girl and admitted to talking online but denied that he was coming
to meet her to engage in sexual activity. The Applicant received a three level
reduction in his sentence for “Acceptance of Responsibility”.
[7]
The United States has approved the Applicant’s
transfer and he has no criminal record in Canada or outstanding charges in the
United States. He only pled guilty in 2008 in Illinois for driving while his
licence was suspended but with no jail time.
[8]
The Applicant is currently in a low security facility
in Youngstown, Ohio and his adjustment has been satisfactory with no
intervention and no disciplinary charges. He has a job as a hallway porter, has
completed health courses and is enrolled in faith-based courses.
[9]
The Applicant moved to Illinois to pursue a
relationship with his now ex-wife who is significantly older American Citizen
with children of her own. The Applicant was in the United States on a K1 fiance
visa until the couple married in 2000 and later divorced in 2011. As his now ex
wife had children from an existing marriage the couple’s plan was to return to
Canada once her children were old enough. In 2008, one of her children that was
still living at home was under court order not to leave the United States which
further frustrated the plan to return to Canada.
[10]
The Applicant has younger brother and sister in
Canada. The Applicant’s sister in Canada stated that his family ties are strong
and that they write to each other, however she is only able to provide
emotional support. The sister states that her brother was suicidal at the time
of the offence, attempted suicide and is now diagnosed with bipolar disorder.
The Applicant’s brother has indicated he doesn’t want to have a relationship
with his brother.
[11]
The Applicant was a drug user at a young age and
also reported a history of physical, emotional and sexual abuse since age six.
[12]
The Memorandum to the Minister from Public
Safety Canada does not provide an opinion or recommendation to the Minister but
only summarizes the facts and points out the consideration of certain factors.
The recommendation only states that the file is complete and ready for the
Minister’s review as soon as possible.
[13]
The Minister considered the Applicant’s request
for transfer pursuant to the ITOA as it was prior to the May 3, 2012 amendments
because the application was made before the amendments came into force. The
Minister considered the following factors:
a)
The nature and circumstances of the offence the
Applicant was charged with;
b)
That the Applicant pled guilty and received a
three-level reduction to his offence;
c)
The psychiatric status of the Applicant as
described in the Certified US Case Summary of a Canadian Citizen;
d)
The Applicant’s home life of physical, sexual
and emotional abuse while growing up;
e)
The Applicant does not have a criminal record in
Canada; the applicant pled guilty to driving with a suspended license in 2008;
f)
The Applicant lived in the US since May 2000 and
was employed in the US at the time of his arrest;
g)
The Applicant is a permanent resident of the United
States according to the US Department of Homeland Security, Immigration and
Customs Enforcement and that he last visited Canada in 2004. The CSC Community
Assessment states that the Applicant’s intentions appear to abandon Canada and
that his ties are limited;
h)
He has his sister’s support, but only emotional
support and he is not in contact with his brother and father who both live in
Canada. The Applicant’s mother died in 2003 and he has a daughter in the US
living with her mother. The Applicant married a US citizen in 2000 and divorced
in 2011;
i.
While incarcerated in the US, the Applicant has
demonstrated satisfactory institutional adjustment, has not incurred any
disciplinary charge and completed a variety of courses.
[14]
The Minister found that the Applicant played a
significant role in enticing a minor for sexual activity and that he knowingly
contacted, questioned, sent videos, phoned and travelled to attempt to engage
in sexual activity with a girl who said she was fifteen years old.
[15]
The Minister stated that he considered that the
Applicant:
- pled guilty;
- received a reduced offence level;
- has been of good conduct;
- but also considered the significant
sentence;
- the seriousness of the offence and
- its harm to society;
- that the Applicant has established ties
in the US;
- has not maintained ties to Canada;
- the Minister found that the Applicant
remained outside Canada with the intent to abandon Canada as his permanent
residence.
[16]
The Minister found that a transfer would not
contribute to the administration of justice, including public safety, in Canada
nor to the Applicant’s effective reintegration into the community and
accordingly did not consent to the transfer to Canada.
II.
Standard of Review
[17]
The standard of review of the Minister’s
decision on whether to consent to transfer an inmate pursuant to the ITOA is
reasonableness. The decision is discretionary and subject to significant
deference (Divito v Canada (Public Safety and Emergency Preparedness),
2013 SCC 47 (“Divito”)):
The
Minister’s discretion to grant or refuse prisoner transfer requests under the
ITOA is broad and flexible. A large measure of deference is appropriate in the
circumstances, given the complex social and political problems being tackled,
such as security and terrorism: Kamel (F.C.A.), at paras. 57-59; Cotroni,
at p. 1489; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1
S.C.R. 761, at paras. 37-39.
Each individual decision by the Minister
must nonetheless respect the governing principles of administrative law and, of
course, remains subject to judicial review. Moreover, the Minister’s discretion
must be exercised with due regard for the s. 6(1) Charter rights at stake: Doré
v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395.
[18]
The only issue to be decided is whether the Minister’s
decision was reasonable.
III.
Preliminary Issue
[19]
The Respondent argued that this judicial review
application is moot because the Applicant is open to re-apply for a transfer
one year after the date of his initial denial letter, meaning he could have
reapplied since November 3, 2013. The Respondent’s position is that a
reapplication would serve the same purpose as a positive outcome from this
judicial review and that because of judicial economy, the Court should exercise
its discretion to deny the application.
[20]
The test for the doctrine of mootness is set out
in Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 at 353 (“Borowski”).
The test in Borowski involves a two-step analysis: First whether the “...tangible and concrete dispute has disappeared and the
issues have become academic” and second, if question one is in the
affirmative, then is it necessary that the court should exercise its discretion
to hear the case.
[21]
The Respondent is correct that the Applicant
could apply again but then he would be subject to the legislation that was
brought in after his first application. For this reason the Applicant strongly
opposes re-application and argues there is still a live issue as he is still
serving his sentence in the United States.
[22]
If I follow the Respondent’s position and find
this matter moot because the Applicant could reapply then it would appear that
all transfer cases would be moot. Generally it takes at least one year from the
date of the decision until the hearing thus making the option of reapplying
available to the inmate. That would insulate the Minister’s decisions from ever
being reviewed. That being said on some facts the matter may be moot but in
this case the legislation was amended since his original application.
[23]
I do not find that the tangible and concrete
dispute has disappeared and so that no prejudice occurs I will hear the matter.
IV.
Analysis
[24]
The Minister was provided a memorandum
concerning the Applicant’s request for a transfer. The memorandum was prepared
by CSC and supported by documentation. The Minister is not bound to follow the
advice of CSC but the Minister must give reasons so that the Court can
understand why the Minister made the decision.
[25]
The Applicant pointed out several factual errors
in the decision and submits that the Minister’s decision was unreasonable
because certain facts of his application were misconstrued.
[26]
The Applicant alleges the Minister erred when
stating he has no relationship with his father in Canada when the basis of his
toxic relationship with his father and his attempts to reconcile were ignored.
He says that this is very insensitive to use his relationship with his father
against him.
[27]
He argues his ability to continue social ties with
his friends in Canada was destroyed by the practicalities of prison life such
as limited phone calls, limited money for stamps, gifts and other restrictions.
[28]
The Applicant disputes the Minister’s characterization
of his relationship with his brother and sister that he says were done in a vacuum
without regard to the human aspects of the relationships. He sees an
overzealousness of the Minister to read into things such as the reason why he
cannot live with his sister is because she is newly married with a small house,
not because she does not want him.
[29]
He was concerned that the Minister seemed to put
a lot of weight on the fact he has a child out of wedlock that lives with the
mother in the United States. His evidence was he has little contact with the
child. The lack of contact with the child had more permanence once he was
imprisoned as he understood he would be deported back to Canada and would have
no opportunity to have a relationship with the child. Yet having a child as a
result of an affair in the United States seemed to be a factor that the Minister
put great weight on proving that he had abandoned Canada.
[30]
The Applicant submits that his transfer to
Canada actually fulfills the goals of the ITOA regarding public safety,
security, rehabilitation, and reintegration and the Minister’s position is
directly counter to the purpose of the ITOA. The Applicant submits that if he
is transferred to Canada, he will access programs on rehabilitation and
reintegration and that following release, he would be under the watch of either
the parole board or he would be a registered sex offender in Canada. He argues
that if he completes his sentence in the United States and then returns to
Canada on his release date of February 16, 2018 (as his citizenship is not in
question), he will have no reintegration skills and will not be supervised by
any agency. The Applicant submissions are that if he is returned to Canada, he
will be under greater control, supervision, his criminal record will be in
Canada and if he commits any further crime in Canada, will likely have greater
penalties.
[31]
Further submissions by the Applicant were that the
Minister did not consider several mitigating factors in his case, namely that
he is in a privately contracted facility in the United States where
reintegration programs are not offered to inmates who will be deported. He
argues that without rehabilitation programs, he will be at a disadvantage. He
will have no vocational or technology skills when he is released. He argues
that the United States corrections system has a much higher rate of recidivism
compared to the Correctional Service in Canada.
[32]
The Supreme Court of Canada described the
purpose and background of the ITOA in Divito, above, in relation
to the constitutionality of section 10 and whether the provisions infringed
upon section 6 of the Charter. As a matter of international law, Canada
does not have the legal authority to require the return of a citizen in jail in
another country. Treaties between the United States and Canada were entered
into to allow inmates to serve their sentence in their home country there by
promoting the rehabilitation and reintegration closer to their families, in
familiar culture, language and custom. Neither the ITOA nor section 6 of the Charter
create a right for Canadian citizens incarcerated abroad to return to Canada to
serve their sentences. However, the Supreme Court of Canada also added that
once the foreign jurisdiction consented to transfer, as in this case with Mr.
Tosti, the Minister’s discretion under section 10 is fully engaged and must be
exercised in compliance with Charter values (Doré v Barreau du
Québec, 2012 SCC 12 at para 18).
[33]
Section 10 requires the Minister to consider all
of the enumerated factors listed. No one factor is paramount and the purposes
as listed in section 3 should be at the front of mind when making a decision (Canada
(Public Safety) v Carrera, 2013 FCA 277 (“Carrera”)).
[34]
Mr. Justice Stratas provided guidance in Carrera
at paragraph 6, when he said that exalting abandonment above the other sections
is not reasonable. Abandonment is a backward looking assessment and can be
given significant weight (Carrera at para 7) but “… the Minister must still engage in the process of
consideration and weighing discussed in the preceding bullet”. In that
bullet at paragraph 9, he offered the following guidance:
The Minister must consider and weigh all of
the factors under section 10, bearing in mind the purposes of the Act set out
in section 3, namely to further “the administration of justice” and “the
rehabilitation of offenders and their reintegration into the community’ by “
enabling offenders and their reintegration in to the community” by “ enabling
offenders to serve their sentences in the country of which they are citizens or
nationals.” ….”
[35]
In Lau v Canada (Public Safety and Emergency
Preparedness), 2013 FC 1142, aff’d 2015 FCA 28, Madam Justice Kane
condensed many of the principles the Minister must consider:
…
[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......
[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…
[36]
And from Del Vecchio v Canada (Public Safety
and Emergency Preparedness), 2011 FC 1135 at para 22:
As Justice Harrington underscored at
paragraph 22 of Divito v Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FC 983, [2009] FCJ No 1158 (“Divito, FC”), the
question for the Court is not whether it would have been reasonable for the
Minister to agree to the transfer, but rather whether it was unreasonable
for the Minister to refuse the transfer
Emphasis added
[37]
The Minister stated that the transfer was
refused because to do so is not in accordance with the purposes of the ITOA. As
stated in section 3, the purpose of the ITOA is to “…enhance
public safety and contribute to the administration of justice and the
rehabilitation of offenders and their reintegration into the community…”
The Minister’s reasons state that the factors weighing against consent were the
seriousness and nature of the offence, the Applicant’s limited ties to Canada
and that it appeared that the Applicant abandoned Canada.
[38]
Mr. Justice Martineau found in Lebon v Canada,
2012 FC 1500 that the Minister must engage in a true balancing exercise of the
competing factors to explain why he refused to consent. Here, the Minister’s
decision appears to rely on the Community Assessment Report however does not
engage with the clearly competing factors outlined in the Memorandum to the
Minister and the CSC Summary. In the Summary, it is clearly set out at Section
J “Effect of Transfer” if the Applicant is not transferred, he would be
deported to Canada in 2018 and “…then not be subject to
any supervision requirement or controls and there would be no record in Canada
of his foreign conviction”. Further, that if the Applicant was transferred,
his offence is a “designated offence” and he would be required to register in
Canada as a sex offender. The Minister does not engage at all with the contrary
position that public safety in Canada may be enhanced by the Applicant’s
transfer; the Minister obliquely states that a transfer would not contribute to
public safety when there is clear evidence of the opposite. The evidence is
simply re-stated in the decision but there is no weighing exercise.
[39]
Further, neither the CSC Summary nor the Memorandum
to the Minister has a statement regarding the existence or lack of
rehabilitation programs available to the Applicant in the United States. As
this is a stated purpose of the ITOA, and the Applicant himself provided
evidence that rehabilitation programs were not available to him because he is
an inmate awaiting deportation, the Minister was likewise required to engage
with this evidence. It is troubling and an incomplete assessment because the
Applicant’s evidence on rehabilitation is not mentioned in the decision,
Memorandum or the Summary but is a primary consideration when administering the
ITOA.
[40]
Each of the errors that the Applicant identified
above may be characterized as disagreement with the weight the Minister put on
certain factors, so his arguments are to weight, rather than an unreasonable
outcome. This is because of the great discretion that the Minister has when
assessing an inmate for transfer pursuant to the ITOA. The Minster has
discretion no doubt, as outlined in Divito, but for a decision to be
reasonable, it must be intelligible. With the lack of engagement with competing
factors, it is not clear at all how the Minister arrived at his decision and
why the strong evidence in favour of a transfer was rejected.
[41]
As is stated many times since Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), ,
2011 SCC 62, reasons do not require every piece of evidence to be recited, but
conversely, reasons must allow this Court to understand how the decision was
made and whether it falls within the reasonableness spectrum. The reasoning of
the decision cannot be assessed in this case because the Minister did not
engage with or evaluate important contrary evidence but simply listed it all.
[42]
Importantly, some of the Minister’s findings are
directly contradictory to what is stated in the Memorandum and Summary, namely
that the Applicant has not maintained ties to Canada. The Memorandum states
that the Applicant’s sister says that family ties in Canada remain strong and
the CSC Summary at section 5(C), also states the Applicant has family ties in
Canada.
[43]
I acknowledge the Respondent’s argument that the
Minister is entitled to make a comprehensive approach to all relevant factors
and that the presence or absence of a particular factor is not determinative,
but that is not what makes the decision unreasonable; it is the complete lack
of engagement with highly relevant factors.
[44]
I also agree with the Respondent that the
Minister has the discretion to conclude that the Applicant has abandoned Canada
when looking backward at what the Applicant did in the past, rather than his
intentions for the future but I disagree that the Minister made a fulsome
assessment of the evidence by simply reciting factors in favour of transfer. I
apply the decision of Mr. Justice Stratas in Carrera, above, that if
abandonment is present, then the Minister must still engage in the process of
consideration and weighing.
[45]
For these reasons, the application for judicial
review is allowed. The application for transfer is remitted to the Minister for
reconsideration.
[46]
The Applicant should be accorded 30 days from
the date of this order to prepare and file additional submissions if he wishes,
before his application is reviewed by the Minister. The review is to take place
using the legislation in place at the time the application was originally
filed.
[47]
Post hearing, the Respondent abandoned their
request for costs. The Applicant did not seek costs in his application but did
wish to be reimbursed for his filing fees as he currently makes $29.00 a month
from his institutional work. I will award costs in the amount of $250.00 to the
Applicant payable by the respondent forthwith.
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