Docket: A-418-13
Citation:
2015 FCA 28
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CORAM:
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NOËL C.J.
DAWSON
J.A.
TRUDEL
J.A.
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BETWEEN:
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CHUCK SUN LAU
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Appellant
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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 OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on January 29, 2015).
DAWSON J.A.
[1]
Mr. Lau, a Canadian citizen, was convicted in Australia of possession of a commercial quantity of heroin and of being knowingly concerned
in the importation of a commercial quantity of heroin. In consequence, he was
sentenced to two concurrent sentences of 25 years imprisonment.
[2]
On December 14, 2012, the Minister of Public
Safety and Emergency Preparedness refused to consent to Mr. Lau’s request pursuant
to the International Transfer of Offenders Act, S.C. 2004, c. 21 that
Mr. Lau be permitted to serve the remainder of his prison sentence in Canada.
[3]
In carefully written and thorough reasons, a
judge of the Federal Court dismissed an application for judicial review of the
Minister’s decision (2013 FC 1142).
[4]
This is an appeal from that decision.
[5]
On this appeal the appellant argues that the
Minister’s decision was unreasonable because the Minister failed to give
intelligible reasons for disagreeing with the recommendation of the
Correctional Service of Canada, failed to conduct a forward-looking analysis,
gave primacy to one of the factors the Minister was obliged to consider, failed
to consider the terms under which the appellant would be supervised if returned
to Canada, failed to give sufficient weight to Mr. Lau’s co-operation with
Australian authorities and family circumstances, and failed provide an
intelligible explanation of how the Minister weighed the factors enumerated in
section 10 of the International Transfer of Offenders Act.
[6]
We disagree. The Judge found the Minister’s
decision to be “carefully worded to address the criteria of
the [International Transfer of Offenders Act], to show some assessment
of the competing factors, to explain why the Minister departed from the advice
of [the Correctional Service of Canada] 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” (reasons, at paragraph
48). We agree, substantially for the reasons given by the Judge.
[7]
Particularly, in our view, the Minister was
entitled to rely upon the fact that the appellant escaped from custody as
evidence that Mr. Lau continued to be involved with other criminal associates.
This distinguishes the decision in Le Bon v. Canada (Attorney General),
2012 FCA 132, 433
N.R. 310.
[8]
The appellant also argues that the Federal Court
erred by failing to address his argument that the Minister’s refusal to
disclose the Australian Probation and Parole Service’s International Transfer
Report in advance of rendering his decision violated procedural fairness and
the appellant’s rights under section 7 of the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[9]
Assuming, without deciding, that the appellant’s
section 7 rights were engaged by the decision, the appellant has not shown how
the failure to produce the International Transfer Report before the decision
was made breached any principle of fundamental justice. The International
Transfer Report was favourable to the appellant and was considered by the
Minister. The appellant has fallen far short of demonstrating that the failure
to produce the report impaired in any way his ability to meaningfully
participate in the decision-making process.
[10]
For these reasons, the appeal will be dismissed
with costs.
[11]
Having come to this conclusion, counsel have agreed
it is not necessary to consider the motion to adduce new evidence.
“Eleanor R. Dawson”
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