Date: 20100924
Docket: T-707-10
Citation: 2010 FC 958
Ottawa, Ontario, September 24,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
DWAYNE
GRANT
Applicant
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a redetermination by the Minister of
Public Safety and Emergency Preparedness (the “Minister”) which denied the
Applicant’s request for a transfer of his sentence pursuant to the International
Transfer of Offenders Act, 2004, c. 21 (ITOA). The reconsideration
decision of the Minister, dated April 19, 2010 followed an Order of the Federal
Court dated March 4, 2010 in which the earlier decision of the Minister, dated
July 19, 2009 was set aside and he was given 45 days to issue a new decision.
[2]
For
the reasons set out below the application is dismissed.
I. Background
[3]
The
Applicant, Dwayne Grant, is a 27 year old Canadian citizen presently serving a
seven year prison sentence at the C.A.I. San Rafael in Costa Rica for
international drug trafficking offences.
[4]
The
Applicant, along with his five traveling companions, was apprehended by Costa
Rican authorities at the Liberian airport on May 20, 2007. The group, consisting
of the Applicant, his aunt, Gwendolyn Lawrence, and four others (Delores
Buchanan, Mercedes Shaina, Nicole Gayle and Gevon Attzs), was en route to
Toronto after what the Applicant alleges was a one week holiday. The authorities
found 5.79 kilograms of cocaine in the structures of the Applicant’s suitcase. The authorities
also found cocaine in the suitcases of the Applicant’s traveling companions and
seized a total of over 34 kilograms of cocaine from the group.
[5]
The
Applicant and the other travelers plead guilty to international drug
trafficking on November 19, 2007 and were each sentenced to seven years in
prison.
[6]
On
November 28, 2007, the Applicant made a transfer request to Correctional
Services Canada (CSC) for a transfer from Costa Rica to Canada pursuant to
section 7 of the ITOA.
[7]
CSC
received the Applicant’s application on February 5, 2008, the same day
receiving similar applications from the other Canadian citizens in the group,
namely Ms. Lawrence, Ms. Shaina and Mr. Attzs. All four individuals received
an acknowledgement receipt from CSC stating that the application would be
processed within six to nine months.
[8]
The
Costa Rican authorities granted preliminary approval for the Applicant’s
transfer on January 24, 2008 and approved the Applicant’s request in November
2008.
[9]
Ms.
Shaina’s request for transfer was approved in November 2008 and she returned to
Canada in March
2009. Ms. Lawrence’s request for transfer was approved in December 2008 and she
returned to Canada in March
2009. The status of Mr. Attzs’ request for transfer is unknown.
A. First
Decision
[10]
The
Applicant’s request for transfer was denied by the Minister (then the
Honourable Peter Van Loan) on July 6, 2009 based on his belief the
Applicant “may, after the transfer, commit a criminal organization
offence.” (Emphasis added)
[11]
The
decision was set out and supported by four paragraphs of reasons on a single
page. The decision of the Minister was contrary to the findings of CSC in an
executive summary that “the information obtained to date does not lead one to
believe that [the Applicant] would, after the transfer, commit…a criminal
organization offence,” (Applicant’s Record, page 87).
B. Judicial
Review of First Decision
[12]
The
Applicant applied for judicial review of the first decision. On March 4, 2010
Justice Robert Barnes of the Federal Court set aside the Minister’s
decision and sent it back for redetermination. The Court held that the reasons
provided by the Minister were “entirely insufficient” rendering the decision
unreasonable as it lacked transparency and intelligibility.
[13]
At
paragraph 2 of Grant v. Canada (Minister of
Public Safety and Emergency Preparedness), [2010] F.C.J. No. 386 (FC)
(QL), Justice Barnes found that:
[…] in a case such as this one
where the Minister decides not to follow the advice received, he has a duty to
explain why and to clearly identify where his assessment differs from that of
his advisors. […]
[14]
Justice
Barnes also noted at paragraph 5:
The Minister’s negative
conclusion was that Mr. Grant may, after the transfer, commit a criminal
organization offence as defined by s.2 of the Criminal Code. This is of course,
inconsistent with the language of the ss.10(2)(a) of the Act which requires
that, in the opinion of the Minister, the offender will commit a criminal
organization offence.
(Emphasis in original)
[15]
Justice
Barnes gave the Minister 45 days in which to reconsider the request.
[16]
On
March 18, 2010 the Applicant made further submissions in support of his
application for transfer and CSC submitted an updated assessment of the
Applicant’s case.
C. Reconsideration
Decision – The Decision Under Review
[17]
On
April 19, 2010, the Minister again denied the Applicant’s request for transfer.
The decision was accompanied by 6 pages of reasons and based the denial on the
grounds that: (1) the Applicant is a significant risk to commit an organized
crime offence; and (2) that he remains a threat to the security of Canada.
II. Issues
[18]
The
Applicant raises the following issues:
1) Should the Minister’s decision of
April 19, 2010 be set aside on the basis of reviewable errors?
2) Does
the Minister’s reconsideration decision unjustifiably violate the Applicant’s
rights under section 6 of the Charter?
3) In
the case of an affirmative answer to 1) or 2), what is the appropriate remedy?
III. Discussion
& Analysis
A. The
Statutory Framework
[19]
Pursuant
to the ITOA, a Canadian citizen imprisoned abroad may make a request to
serve the remainder of his foreign imposed prison sentence in Canada. The consent
of the individual and the approval of the foreign country and Canada are
required.
[20]
Section
10 sets out the factors that a Minister shall consider upon granting or denying
a request:
Factors
— Canadian offenders
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.
Factors
— Canadian and foreign offenders
(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.
|
Facteurs
à prendre en compte : délinquant canadien
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.
Facteurs
à prendre en compte : délinquant canadien ou étranger
(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).
|
[21]
The
purpose of the ITOA is set out in section 3:
Purpose
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.
|
Objet
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.
|
[22]
In
the present case, the Minister makes it clear in his reasons that he agrees
with CSC’s assessment that:
• Mr.
Grant only intended to leave Canada for a week and therefore did not abandon Canada as his home;
• Mr.
Grant has both family and social ties in Canada in the form of his parents,
common-law spouse and two-year old daughter and that their support and his desire
to continue his education in Canada indicate that a transfer would facilitate
his reintegration and rehabilitation into the community;
• The
Costa Rican prison system does not present a serious threat to Mr. Grant’s
security or human rights, although the conditions are not to the same standard
as they would be in a Canadian institution;
• Mr. Grant has never been
transferred under ITOA.
[23]
The
CSC report prepared for the Minister regarding this application also found
that:
• The information obtained by CSC did “not
lead one to believe that Mr. Grant’s return to Canada would pose a
threat to the security of Canada”; (Respondent’s Record, page 12)
• The
information obtained by CSC did “not lead one to believe that [Mr. Grant]
would, after the transfer, commit a criminal organization offence within the
meaning of section 2 of the Criminal Code.” (Respondent’s Record, page
13)
[24]
It
is with these last two findings that the Minister came to the opposite
conclusion, and upon which he bases his decision to deny the application.
B. Standard
of Review
[25]
The
Applicant and Respondent both submit that the appropriate standard of review of
decisions of the Minister made pursuant to the ITOA is reasonableness. The
Applicant, however, further submits that the Minister’s interpretation of the ITOA,
specifically subsections 10(2)(a) and 10(1)(a), is a question of law,
reviewable on a standard of correctness. The Applicant provides no support for
this assertion beyond merely stating it.
[26]
Following
Dunsmuir, above, this Court has held that decisions of the Minister made
pursuant to ITOA are discretionary, entitled to significant deference
and thus reviewable on a reasonableness standard (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, Getake v. Minister of Public Safety and
Emergency Preparedness, 2008 FC 965, 298 D.L.R. (4th) 558 at para. 11,
DiVito v. Minister of Public Safety and Emergency Preparedness,
2009 FC 983, at para. 19 and Grant, above).
[27]
In
Kozarov v. Canada (Minister of Public
Safety and Emergency Preparedness), 2007 FC 866, [2008] 2 F.C.R.
377, a case involving a review of an ITOA decision pre-Dunsmuir,
Justice Sean Harrington stated that, “However, on legal interpretation the
standard of review is correctness. The Minister is owed no deference.” (Kozarov
at para. 15). Questions of statutory interpretation therefore are generally
considered questions of law, for which the Court will undertake its own
analysis of the question, without showing deference to the decision maker’s
reasoning process.
[28]
While
this is normally the case, Dunsmuir, above at para. 54 established a
presumption that an administrative tribunal’s interpretation of its “home”
statute – a statute closely connected to its function, with which it will have
particular familiarity – is normally reviewable on a standard of reasonableness.
A discretionary ministerial decision made pursuant to legislation which engages
the Minister’s expertise and policy role will similarly attract a great deal of
deference and point to a standard of reasonableness in some matters regarding
the interpretation of the statute.
[29]
In
the present case, the Applicant contends that the Minister erred in law in
interpreting “will” in subsection 10(2)(a) as meaning that the Minister was to
determine whether or not, in his opinion, there is a “significant risk” that
the Applicant will commit a criminal organization offence. The Applicant also
argues that the Minister erred in law in interpreting subsection 10(1)(a) as
including a criminality threat in determining whether the offender’s return to
Canada would constitute a threat to the security of Canada. The
Minister’s interpretation is different to the existing jurisprudence of this
Court in Getkate, above, at para. 41.
[30]
With
respect, I disagree with the Applicant’s submission that the Minister’s
interpretation of section 10 is a question of law. Parliament appointed the
Minister to be the gate-keeper of the international transfer of offender’s
regime. In this role, the Minister of Public Safety and Emergency Preparedness
is particularly well suited to consider the evidence before him and
appropriately balance the reintegration interests of the Applicant and concerns
about the administration of justice in Canada. In this case, the Minister did
not interpret provisions that are of central importance to the legal system as
a whole, but rather gave context to a fact-laden reasoning process in an effort
to produce transparent, intelligible reasons in accordance with Justice Barnes’
March 4, 2010 decision.
[31]
The
courts should not readily interfere with a discretionary ministerial decision
which is owed the highest deference (Kozarov, above, at para. 14)
and following the jurisprudence of this court in Getkate, Kozarov and
DiVito, above, I will apply a standard of review of reasonableness.
[32]
The
reasonableness standard concerns itself with, “the existence of justification,
transparency and intelligibility within the decision-making process” and
“whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, above).
In the present case therefore, I cannot ask whether it would have been
reasonable for the Minister to agree to the transfer of Mr. Grant, but rather
as Justice Harrington stated in DiVito, above at para. 22 “The question,
however, is whether it was unreasonable to refuse the transfer.”
IV. Issue
1
A. The
Minister’s Section 10(2)(a) Finding is Reasonable
(1) The
Minister Used a Proper Legal Standard
[33]
Under
subsection 10(2)(a) the Minister must consider, whether in his 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.” (Emphasis added)
[34]
In
the redetermination decision, the Minister explains that he interprets this
provision, “as requiring me to determine whether there is a significant risk
that Mr. Grant will commit a criminal organization offence, which is something
other than whether there is certainty in the future that the individual will do
something,” (emphasis added). The Applicant contends that this is the incorrect
legal standard.
[35]
I
am unconvinced by the Applicant’s submission that using a “significant risk”
standard unreasonably dilutes the degree of certainty indicated by Parliament
by lowering the threshold to something less than a determination on a balance
of probabilities. While the Applicant illustrates his argument with a
discussion turning on the phrase a “substantial risk,” I note that the exact
phrase used by the Minister is a “significant risk”.
[36]
A
significant risk must represent something much more than a mere possibility –
in criminal law a “significant threat” must be both real and serious (Winko
v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625,
175 D.L.R. (4th) 193 at para. 57). In a Saskatchewan drug case,
labour law jurisprudence was used to help define something significant as
something “consequential, notable, considerable, eventful, important, material,
meaningful, profound, or substantial.” (R. v. Dupuis (1998), 174 Sask.R.
17, 130 C.C.C. (3d) 426 (QB) at para. 17). Clearly, a “significant” risk is a
much higher standard than the “may commit” standard that Justice Barnes pointed
out as being deficient on the first judicial review.
[37]
In
any case, while Parliament could not have intended the Minister to be
clairvoyant, the term “will” is tempered by the preceding, “in the opinion of
the Minister.” In my opinion, the phrase “in the opinion of the minister”
trumps the need for any continued academic debate on the exact meaning of
“will”, whether it be a significant or substantial risk of future action, in
the provision. A more helpful formulation of the issue at hand is whether,
in the opinion of the Minister, there is evidence that leads him to reasonably
conclude that an organized criminal offence will be committed by the Applicant
after the transfer.
(2) There
is a Sufficient Evidentiary Basis for the Minister to Reasonably Invoke Subsection
10(2)(a)
[38]
The
real issue to deal with then is whether there was sufficient evidence to allow
the Minister to make a good-faith finding that the Applicant presents a
significant risk of committing a criminal organization offence once transferred
to Canada. In my view,
the Minister acted reasonably in concluding that such evidence exists.
[39]
The
Minister admits on page 5 of his reasons that:
I have not received any record that would
support the conclusion that Mr. Grant will carry out terrorism or criminal
organization offences, as those terms are defined in the Criminal Code, or that
he is a threat to the security of Canada.
[40]
The
Minister, however, concluded that there was a significant risk that the
Applicant would commit a criminal organization offence contrary to section 2 of
the Criminal Code, R.S. 1985, c. C-46 if transferred to Canada
because: 1) the offence was of a very serious nature; 2) the offence was
premeditated, as it was of a nature that would have required significant
pre-planning and significant financing; 3) the Applicant has refused to admit
responsibility by continuing to assert that he was in Costa Rica on a holiday;
4) there is no evidence that the Applicant cooperated with authorities with
respect to the identification or prosecution of other individuals potentially
involved with his offence; and 5) there is no evidence that any ties the
Applicant might have had with conspirators has been severed.
[41]
Using
the listed criteria, the Minister explained why he disagreed with the CSC
report, taking into account factors relevant to determining whether the
purposes of the ITOA would be fulfilled by allowing the transfer. The
Applicant consequently knows, based on the written decision, what the Minister
considered, what the Minister concluded regarding each factor, and why his
application was finally denied. I have had the benefit of reading Dudas v. Canada (Minister of
Public Safety and Emergency Preparedness), 2010 FC 942 and Curtis
v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC
943 and although each case is distinguishable on the facts, I agree that it is
incumbent on the Minister when making a decision of such importance to the
Applicant in question to give a complete explanation for the decision. In the
present case the Minister clearly expresses that due to the listed conclusions
he finds that Mr. Grant’s return to Canada would not
contribute to the administration of justice.
[42]
The
conclusions are not merely extrapolations based solely on the fact of the
Applicant’s conviction, but are, however, supported by evidence in the record. The
Community Assessment prepared by CSC (Applicant’s Record, page 137) noted:
The offender’s parents
presented as positive, pro-social individuals who have the offender’s best
interests in mind. It must be noted that the contacts do not appear to be fully
informed in regards to the circumstances of Mr. Grant’s offence. The offender
greatly understated the amount of cocaine in his possession and they have no
knowledge as to how such a significant amount of drugs came into his
possession. The fact that 5 of Mr. Grant’s co-convicted were found with
similarly significant amounts of drugs is indicative of their involvement in a
large scale international drug ring. From the information provided by the
contacts it would appear that the offender was ignorant of his involvement and
that he was an unwitting participant. It is this author’s assessment that given
the involvement of 7 individuals and 34 kilograms and 495 grams of cocaine, it
is extremely unlikely that Mr. Grant had no knowledge of his involvement in
criminal activity. However, given the information that Mr. Grant was a last
minute addition to his Aunt’s group traveling to Costa Rica, it is also just as unlikely that Mr.
Grant was a major party in the larger conspiracy to traffic in cocaine.
[43]
The
reasonableness standard only requires that the Minister, having regard to all
the evidence before him, make an intelligible, coherent, defensible decision.
He is free to weigh the evidence as he sees fit and, as the Respondent submits,
the Minister is not bound to adopt the advice or recommendations of the CSC officials.
[44]
Both
parties cite DiVito, above, as supporting their respective positions. DiVito
upholds a Ministerial decision not to approve an offender’s transfer in spite
of a CSC summary indicating that the offender did not constitute a threat to Canada’s security. The
facts of DiVito are distinguishable from the present, yet, in DiVito
the Court recognizes that the Minister must consider and weigh evidence from
various sources and take various factors into consideration, such as the
objective of preventing members of criminal organizations from exercising
influence in the community, when making his decision.
[45]
Furthermore,
as Justice Harrington stated in Kozarov, above, at para. 22, “Section 10
is neither all inclusive, nor does it require the Minister to either give or
refuse consent depending on whether the factors set out therein are met.”
[46]
The
Applicant plead guilty to international drug trafficking – a very serious crime
that one could reasonably conclude required financing, planning and other
logistics often associated with organized crime. Considering the entirety of
the evidence and the discretion allowed to the Minister in making this
decision, his conclusion that the Applicant will commit an organized crime
offence falls within the range of possible, acceptable outcomes defensible in
respect of the facts and the law.
B. No
Legal Basis to Require the Minister to Explain Other Decisions
[47]
Counsel
for the Applicant acknowledged during the hearing that had Mr. Grant’s
co-accused been denied their transfer application, it would be improper to
conclude that Mr. Grant’s application be similarly denied. Counsel agreed that
each case must be determined by the Minister individually on its merits and
record of evidence.
[48]
As
an anecdote, the fact that two of Mr. Grant’s co-accused transfer requests have
been approved may be compelling, but as a matter of law, the doctrine of
legitimate expectations is limited to procedural fairness. In Mount Sinai Hospital v. Quebec (Minister of
Health and Social Services), [2001] 2 S.C.R. 281, 200 D.L.R. (4th) 193,
Justice Ian Binnie affirms that the doctrine of legitimate expectation is
limited to procedural relief. Furthermore, at para. 35 Justice Binnie emphasizes
that although in some situations it might be difficult to distinguish between
substance and procedure, “The inquiry is better framed in terms of the
underlying principle mentioned earlier, namely that broad public policy is
pre-eminently for the Minister to determine, not the courts.” We have no idea
what conditions the co-accused faced in Costa Rican prisons or what their
personal circumstances were, and it is unreasonable and unnecessary to expect
the Minister to list these as a justification for the outcome of the present
application.
C. Subsection
10(1)(a) Finding Not Needed to Support the Minister’s Decision
[49]
While
I would tend to agree with this Court’s observation with respect to the meaning
of “threat to the security of Canada” in Getkate, above, as the
Respondent submits, this is not fatal to the decision of the Minister as a
whole.
[50]
The
Minister’s decision to deny the transfer remains justified based on his
conclusion regarding subsection 10(2)(a).
V. Issue
2
A. The
Minister Did Not Unjustifiably Infringe the Applicant’s Rights under Section 6
of the Charter
[51]
Since
I have determined that the Minister’s decision constitutes a reasonable
exercise of discretion under ITOA, I need not canvass the Charter Issue.
[52]
In
the case at bar, the reasons articulated by the Minister are consistent with an
appreciation of the totality if the evidence and an understanding of the
purpose of the ITOA. The Minister explains the evidence he assessed and
how he assessed it. The decision is justified by facts and law, and
intelligible. Accordingly, the application for judicial review is denied.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“ D.
G. Near ”