2013 FCA 55
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT
OF THE COURT
from the Bench at Toronto, Ontario, on February 25, 2013)
four years ago, Mr. LeBon, a Canadian citizen presently in a low security jail
in the United States, applied to be transferred to a Canadian facility. The International
Transfer of Offenders Act, S.C. 2004, c. 21, permits and governs such
this Act, the Minister is to determine each application using a fixed set of factors
set out in section 10 of the Act, guided by the Act’s purpose, namely “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.”
Minister refused Mr. LeBon’s application. He found that one of the section 10
factors against transfer – the risk of commission of a “criminal organization
offence” in the future – was present. All other factors raised by the evidence
were in favour of transfer.
Court quashed the Minister’s refusal because in his reasons he did not
demonstrate a weighing of the section 10 factors, as he was required to do. In
particular, he did not explain why the factors favouring transfer should not
prevail. Accordingly, this Court found that the Minister did not give reasons
as he was supposed to do under subsection 11(2) of the Act. Further, his
reasons were not “transparent” and “intelligible,” as they are supposed to be.
This Court remitted the matter to the Minister for re-decision. See LeBon v.
Canada (Attorney General), 2012 FCA 132, rev’g 2011 FC 1018.
his re-decision, the Minister again refused Mr. LeBon’s application for transfer.
Federal Court quashed the Minister’s re-decision: 2012 FC 1500. The Federal
Court found that the Minister “only paid lip service” to this Court’s reasons,
“basically reassert[ing] his previous reasoning,” showing a “closed mind” and
“intransigency” (at paragraphs 13 and 15). The Federal Court also found that
the refusal was substantively unreasonable: not only had the Minister failed to
articulate an acceptable basis for finding there was a significant risk that
Mr. LeBon would commit a “criminal organization offence,” there was no rational
support in the record to support such a finding (at paragraphs 18-23).
than sending the matter back to the Minister, the Federal Court issued a
mandatory order. It required the Minister within 45 days to accept Mr. Le Bon’s
transfer request and confirm in writing to Mr. LeBon that all reasonable steps
had been taken for his prompt transfer to a correctional facility in Canada.
Minister appeals to this Court. Just after the Minister launched his appeal, he
sought a stay of the Federal Court’s judgment pending appeal. Although this
Court noted the harm suffered by Mr. LeBon over the last four years, it granted
the stay: 2013 FCA 18.
this Court, the Minister contests the Federal Court’s findings that the
Minister displayed a “closed mind” and “intransigency” in his re-decision and paid
“lip service” to this Court’s earlier decision. We consider these factual
findings supportable on the basis of the record.
this Court, the Minister does not contest the Federal Court’s finding that his
re-decision is substantively unreasonable. The only live issue placed before us
is whether, as a matter of law, it was open to the Federal Court to make a
mandatory order, rather than sending the matter back for another re-decision.
effect, the Minister submits that the Federal Court was constrained: all the
Federal Court could do is send the matter back to the Minister, giving him a
third chance to make a decision that would follow Parliament’s law and the
the reasons that follow, and despite the able and professional submissions of
Ms. Lawrence, counsel for the Minister, we do not accept that the Federal Court
was so constrained.
their memoranda in this Court, the parties drew upon a narrow line of cases
where the Federal Courts had issued “directed verdicts” to administrative
tribunals: see, e.g., Canada (Minister of Human Resources
Development) v. Rafuse, 2002 FCA 31; Simmons v. Canada (Minister of National Revenue), 2006 FC 130. By direction issued in advance of the
hearing of this appeal, this Court noted that this line of cases is part of the
general law of mandamus and invited the parties to make wider
submissions at the hearing concerning the availability of mandamus in
these circumstances. We have received and considered those submissions.
our view, in these circumstances, the Federal Court had at least two sources of
power to exercise its discretion in favour of making a mandatory order (mandamus):
mentioned above, the Federal Court found the Minister’s conclusion that there
was a significant risk that Mr. LeBon would commit a “criminal organization
offence” to be unsupported by the evidence, and the Crown does not contest
this. With that factor off the table, all that remained were factors supporting
the transfer. In these circumstances, it was open to the Federal Court to
conclude on this evidence that the only lawful exercise of discretion is the
granting of transfer. In such circumstances, mandamus lies: Apotex v.
Canada (Attorney General),  3 S.C.R. 1100, aff’g  1 F.C. 742 at
pages 767-768 (C.A.) (principles 3, 4(d) and 4(e)), approved on this point in Trinity Western University v. British
Columbia College of Teachers, 2001 SCC 31,  1 S.C.R. 772 at paragraph 41.
the unusual circumstances of this case, mandamus is also
available to prevent the further delay and harm that would be caused to Mr.
LeBon if the Minister were given a third chance to decide this matter in
accordance with law, in circumstances where the Minister did not follow this
Court’s earlier decision, paid “lip service” to it, and displayed a “closed
mind” and “intransigency”: see Pointon v. British Columbia (Superintendent
of Motor Vehicles), 2002 BCCA 516 at paragraph 27 (there is a jurisdiction
to grant mandamus in exceptional circumstances where delay would result
in harm); see also the authorities cited in Blencoe v. British
Columbia (Human Rights Commission), 2000 SCC 44,  2 S.C.R. 307 at paragraph 148 (there is a
jurisdiction, centuries-old, to grant mandamus in exceptional cases of
mal-administration) (per LeBel J., dissenting, the majority not
disagreeing with the existence of the jurisdiction).
We also find that the Federal Court’s exercise of
discretion in favour of making a mandatory order against the Minister (mandamus)
had a foundation in the evidentiary record. Thus, there is no basis for this
Court to interfere with the Federal Court’s exercise of discretion: Trinity
Western, supra at paragraph 40.
In paragraph 2 of its judgment, the Federal Court
set a 45-day period for the Minister to comply with the judgment it made. This
45-day period has elapsed. In the circumstances, the Federal Court’s judgment
will be varied as follows:
in paragraph 2, the words “within 45 days” shall be
replaced with “forthwith”; and
in paragraph 3, the words “to confirm in writing
to the applicant that all reasonable steps have been taken for his prompt
transfer to a correctional facility in Canada” shall be replaced by the words
“the Minister is directed to do everything in his power to effect the transfer
of the applicant to a correctional facility in Canada in March 2013 or, if not
possible, at the earliest possible time thereafter.”
The appeal will otherwise be dismissed, with
costs fixed at $8,900, inclusive of disbursements and taxes.