Docket: T-5-11
Citation: 2012 FC 65
Ottawa, Ontario, January 19,
2012
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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RICHARD GOULET
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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, Richard Goulet, is a federal inmate serving a sentence of seven
years and three months at the Allenwood Low Security Correctional facility in
White Deer, Pennsylvania for the
offences of conspiracies to distribute and to import marijuana into the United
States.
[2]
Mr. Goulet
is a Canadian citizen. On July 10, 2008 he applied under the International
Transfer of Offenders Act, SC 2004, c 21 (Act) for a transfer to a Canadian
correctional facility. The Minister of Public Safety and Emergency
Preparedness (Minister) denied Mr. Goulet’s application by a decision rendered
on December 8, 2010. It is from this decision that this application for
judicial review arises.
Background
The
Decision Under Review
[3]
In
order to fully appreciate the parties’ arguments, it is helpful to consider the
impugned decision in the context of the evidence that was before the Minister.
[4]
The
record discloses that in January 2009 the United States Department of Justice
approved Mr. Goulet’s request for transfer to Canada.
Information provided by the United States authorities at that time confirmed
that Mr. Goulet supplied and smuggled significant quantities of marijuana
from Quebec into the
United States and that he conspired with others in the United States to deliver
the marijuana to Florida. The significance of this illegal activity was
undoubtedly the basis for the lengthy period of incarceration he received in
the United States District Court.
[5]
Other
background information indicated that Mr. Goulet was working in the food
service department at the Allenwood facility and that his conduct record was
clear. He was also receiving lithium to treat a pre-existing bipolar disorder
and had lost considerable weight.
[6]
A
report prepared for the Minister by a Correctional Service Canada Director
provided a summary of Mr. Goulet’s offences and an assessment of the
factors listed in section 10 of the Act to determine if his transfer to Canada was
warranted. That report indicated the following:
A. WHETHER THE
OFFENDER’S RETURN TO CANADA WOULD CONSTITUTE A THREAT TO THE SECURITY OF CANADA (as per ITOA Subsection 10.(1)(a))
Following verification with the
Correctional Service of Canada’s counterparts in the Security and Intelligence
areas and the Canadian Security Intelligence Service (CSIS), the information
obtained to date does not lead one to believe that Mr. Goulet’s return to Canada would pose 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 (as per ITOA Subsection 10.(1)(b))
Mr. Goulet was born in Magog, Quebec, as verified and confirmed by
the Consulate General of Canada in Buffalo, New York on December 8, 2008. There is no indication that Mr. Goulet
intended to abandon Canada as his place of residence.
Mr. Goulet lived in the United
States
temporarily for a period of 8-12 months after his bankruptcy in 2003. During
this time, Mr. Goulet worked in construction and lived with some colleagues
during the week and returned to Canada
every weekend. At the time of his arrest, Mr. Goulet lived in Ayer’s Cliff, Quebec.
C. WHETHER THE OFFENDER
HAS SOCIAL OR FAMILY TIES IN CANADA (as per ITOA Subsection 10.(l)(c))
The community assessment completed on
November 28, 2008 with the subject’s mother, father, brother and sister who
reside in Ayer’s Cliff, Quebec attests that his
social and familial ties remain very supportive and they maintain contact
through daily telephone calls and written correspondence. His family is willing
to offer support in terms of accommodation, although they state that he will
most likely live with his wife in Ayer’s Cliff, Quebec upon release. His brother and sister
attended the trial in the United
States and have
visited him on three occasions. Distance and cost preclude regular visits. His
wife, who was with him at the time of arrest, has been unable to visit him
because of the trauma caused by the incident. They maintain daily contact by
telephone.
D. WHETHER THE FOREIGN
ENTITY OR ITS PRISON SYSTEM PRESENTS A SERIOUS THREAT TO THE OFFENDER’S
SECURITY OR HUMAN RIGHTS (as per ITOA Subsection 10.(1)(d))
The United States or its prison system does not present a
serious threat to the offender’s security or human rights. He has remained
employed in the food service department and has maintained clear conduct. His
adjustment is reported as positive.
However, it should be noted that Mr.
Goulet suffers from a severe case of bipolar disorder, which requires a
specific regimen of medicine and testing. It has been reported by the family
and his attorney that Mr. Goulet has suffered significant weight loss and
appears ill and over medicated. The failure to monitor Mr. Goulet’s condition
can potentially have lethal consequences. The Canadian Consulate in Buffalo, New York is investigating the family’s
allegation that he is not receiving adequate medical care.
E. 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 (as per ITOA Subsection 10.(2)(a))
Given the results of verification with
the Correctional Service of Canada’s counterparts in the Security and Intelligence
areas and the Canadian Security Intelligence Service (CSIS), the information
obtained to date does not lead one to believe that he would, after the
transfer, commit an act of terrorism or organized crime, within the meaning of
section 2 of the Criminal Code.
F. 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 (as per ITOA Subsection 10.(2)(b))
Mr. Goulet has never been transferred
under the International Transfer of Offenders Act or the Transfer of
Offenders Act, chapter T-15 of the revised Statutes of Canada (1985).
[7]
The
above report also stated that Mr. Goulet could be deported from the United
States
to Canada as early as
October 3, 2014 in which event he would not be subject to any parole
supervision or control. The Correctional Services public safety risk
assessment of Mr. Goulet indicated that he had no criminal record in Canada, no
identified ties to an organized crime group and no history of sexual crimes.
He was also found to be unlikely to reoffend (a SIR-RI score of plus 16).
[8]
The
Minister provided the following reasons for denying Mr. Goulet’s
application:
The purposes of the International
Transfer of Offenders Act (the Act) are 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. These purposes serve to enhance public
safety in Canada. For each application for
transfer, I examine the unique facts and circumstances as presented to me in
the context of the purposes of the Act and the specific factors enumerated in
section 10.
The applicant, Richard Goulet, is serving
a sentence of seven years and three months imprisonment in the United States
(U.S.) for the following offences: “Conspiracy to Distribute in Excess of 50
kg. of Marijuana”; “Conspiracy to Import in Excess of 50 kg. of Marijuana”;
and, “Criminal Forfeitures”. In February 2006, Larry Bowen was arrested
with 191 pounds (86.6 kilograms) of hydroponic marijuana in his vehicle. Mr.
Bowen informed U.S. Immigration and Customs Enforcement agents that he had made
10 trips during 2005 and 2006 to [Eric Tetreault] and that the source of the
marijuana was Richard Goulet. Mr. Bowen agreed to participate in a controlled
delivery of marijuana to Mr. Tetreault. Mr. Goulet instructed Mr. Bowen on the
delivery of the drugs to Mr. Tetreault, who was arrested as he attempted to
take possession of the drugs. On June 2, 2006, Mr. Goulet was arrested. Another
accomplice, Stéphane Ruel, who also acted as a driver in deliveries initiated
by Mr. Goulet, was implicated with this transaction.
The Act requires that I consider whether,
in my opinion, the offender will, after the transfer, commit a criminal
organization offence within the meaning of section 2 of the Criminal Code.
In considering this factor, I note that, in addition to the offender, at least
three accomplices were involved in the commission of the offence, a
sophisticated operation involving large quantities of marijuana. There is
information on file that identifies the applicant as a senior participant of
the drug smuggling operation, and the individual who engaged, directed and paid
others for helping smuggle the drug shipment. Furthermore, there is information
on file indicating that the applicant has coordinated and organized drug trips
in the past, purported to typically involve approximately 100 pounds (45
kilograms) of marijuana. The applicant’s accomplice has testified that the
applicant’s family members may have accompanied the applicant on these trips
and his daughter allowed her house to be used to store and transfer the drugs.
Furthermore, two accomplices testified that large amounts of money were
involved in the drug transactions that were transported back to the applicant.
In this case, the applicant was involved in the commission of a serious offence
that, if successfully committed, would likely have resulted in the receipt of a
material or financial benefit by the individuals and the group of individuals
involved in the transaction.
The Act requires that I consider whether
the offender has social or family ties in Canada. I recognize the family ties of the applicant
in Canada, including the fact that the
applicant’s parents, brother, sister, and wife remain supportive.
The Act also requires that I consider
whether the foreign entity or its prison system presents a serious threat to
the offender’s security or human rights. I note Mr. Goulet’s medical condition,
specifically his bipolar disorder and the significant weight loss that appears
to have taken place since he was: incarcerated.
Having considered the unique facts and
circumstances of this application and the factors enumerated in section 10, I
do not believe that a transfer would achieve the purposes of the Act.
Issues
[9]
Mr. Goulet
argues that the Minister’s decision is unreasonable because it fails to fulfill
the requirements of transparency, intelligibility and justification as
stipulated by Dunsmuir v New Brunswick, 2008 SCC 9 at para 151, [2008] 1
SCR 190. The Minister contends that it is possible to understand the basis of
the decision from the reasons provided and that his discretion is sufficiently
broad that judicial deference is owed.
Analysis
[10]
The
determinative issue raised on this application is one of mixed fact and law
and, in particular, whether the Minister’s decision falls within a range of
possible acceptable outcomes that are defensible in light of the evidence and
the law: see Del Vecchio v Canada (MPSEP), 2011 FC 1135 at para 20, [2011]
FCJ no 1395 (QL). The standard of review requires the Court, therefore, to
consider the reasonableness of the Minister’s decision.
[11]
For
the reasons expressed by my colleagues Justice Anne Mactavish in Del Vecchio,
above, and by Justice James O’Reilly in Tangorra v Canada (MPSEP), 2011
FC 1433, [2011] FCJ no 1733 (QL), I have concluded that the Minister’s decision
is unreasonable and that Mr. Goulet’s application must be redetermined on
the merits and in conformity with the Act.
[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. The
provision of reasons, as required by section 11 of the Act, is not accomplished
in the absence of an analysis of the evidence in the context of the stated
legislative purposes and the criteria set out in section 10 of the Act.
Indeed, it is impossible to tell from these reasons what factors caused the
Minister to deny Mr. Goulet’s application or for the Court to determine if
the decision was made in reasonable conformity with the Minister’s statutory
obligations.
[13]
Counsel
for the Minister points to authorities from this Court which seemingly endorse
the reasonableness of decisions similar to the one made in this case: see Newberry
v Canada (MPSEP), 2011 FC 1261, [2011] FCJ no 1544 (QL); Lebon v Canada
(MPSEP), 2011 FC 1018, [2011] FCJ no 1261 (QL); Duarte v Canada (MPSEP),
2011 FC 602, [2011] FCJ no 805 (QL); Holmes v Canada (MPSEP), 2011 FC
112, [2011] FCJ no 82 (QL); Tippett v Canada (MPSEP), 2011 FC 814,[2011]
FCJ no 1015 (QL). It is not evident from all of these decisions that the
Minister’s decisions were as perfunctory as the decision rendered in
Mr. Goulet’s case. However, to the extent that the above authorities
support ministerial decisions that were essentially bare conclusions, I decline
to follow them. Instead, I adopt the reasoning in Del Vecchio, above,
and Tangorra, above, as well as the many other previous authorities that
have set a standard for reasons that requires something more than what was
provided to Mr. Goulet.
[14]
Although
counsel for the Respondent is correct that the Minister has broad discretion to
weigh relevant evidence in accordance with his authority under the Act, that
authority must always be exercised in accordance with the governing legislative
principles. This was a point made many years ago in Roncarelli v Duplessis,
[1959] S.C.R. 121, [1959] SCJ no 1 (QL), where Justice Ivan Rand observed:
In public regulation of this sort there
is no such thing as absolute and untrammelled "discretion", that is
that action can be taken on any ground or for any reason that can be suggested
to the mind of the administrator; no legislative Act can, without express
language, be taken to contemplate an unlimited arbitrary power exercisable for
any purpose, however capricious or irrelevant, regardless of the nature or
purpose of the statute. Fraud and corruption in the Commission may not be
mentioned in such statutes but they are always implied as exceptions.
"Discretion" necessarily implies good faith in discharging public
duty; there is always a perspective within which a statute is intended to
operate; and any clear departure from its lines or objects is just as
objectionable as fraud or corruption. Could an applicant be refused a permit
because he had been born in another province, or because of the colour of his
hair? [T]he legislature cannot be so distorted.
It follows that the Minister’s discretion
does not include the authority to decide a transfer application on the basis of
factors or considerations that fall outside the purview of the legislation. The
Minister’s decision must be sufficiently intelligible and transparent that the
public and the party affected can see that the Act has been fairly applied; see
Adu v Canada (MCI), 2005 FC 565 at para 14, [2005] FCJ no 693 (QL).
An offender is not entitled to a particular outcome even where the case for a
transfer appears compelling, but he is entitled to understand what factors led
to a failed application and some sense for how the evidence was assessed. That
is particularly true where, as here, the information provided to the Minister
by his advisors contradicts the Minister’s conclusion.
[15]
The
Act specifically imposes a duty on the Minister to give reasons. Those reasons
must be sufficient to allow a reviewing Court to understand why the
decision-maker made his decision and to determine whether the conclusion is
within the range of reasonable and acceptable outcomes: see Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 16, [2011] SCJ no 62 (QL). In short,
one of the purposes for reasons is to allow for meaningful judicial review. It
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.
[16]
Counsel
for the Minister argues that it is permissible for a reviewing Court to look to
the record to supplement the decision-maker’s analysis if that is needed to
assess the reasonableness of a decision. That principle, I think, is what Justice Michel Shore had in mind
in Newberry, above, where he said:
28 The question for this Court to
answer is whether, on the information contained in the record, one could
reasonably conclude that there was a basis for the Minister to come to the
conclusion that the objectives of the international transfer of offender's
system, being protection of society and rehabilitation of the offender through
reintegration into society, could not be as effectively achieved through
transfer to Canada.
This point has more recently been emphasized
by the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union,
above.
[17]
Of
course where it is necessary for a reviewing Court to look to the record to
assess the reasonableness of a decision the process may undermine a decision as
readily as support it. That was a point I made in Grant v Canada (MPSEP), [2010] FCJ
no 386 (QL) at para 4 (TD), where the record before the Minister strongly
favoured relief but he refused it without a meaningful explanation. There I
said that “the stronger the case in favour of relief the more onerous the
responsibility to justify a contrary view”.
[18]
The
same situation arises here. The information given to the Minister almost
entirely favoured Mr. Goulet’s transfer to Canada. The
Minister was seemingly concerned with the circumstances of the crime but even
those details were not connected to any of the considerations set out in the
Act. The Minister left Mr. Goulet with a recitation of some of the
relevant facts and a bare conclusion that ran contrary to the overwhelming
weight of the evidence. This is the type of pro forma decision under
the Act that has been repeatedly found to be inadequate: see Del Vecchio,
above; Tangorra, above; Grant, above; Villano v Canada (MPSEP),
2011 FC 1434, [2011] FCJ no 1734 (QL); Downey v Canada (MPS), 2011 FC
116, [2011] FCJ no 139 (QL), Randhawa v Canada (MPSEP), 2011 FC 625, [2011]
FCJ no 791 (QL); Vatani v Canada (MPSEP), 2011 FC 114,[2011] FCJ no 137
(QL); Yu v Canada (MPSEP), 2011 FC 819, [2011] FCJ no 1023 (QL); Dudas
v Canada (MPSEP), 2010 FC 942, [2010] FCJ no 1153 (QL); Getkate v Canada
(MPSEP), 2008 FC 965, [2008] FCJ no 1200 (QL); Singh v Canada (MPSEP),
2011 FC 115, [2011] FCJ no 138 (QL); and Wong v Canada (MPSEP), 2008 FC
723, [2008] FCJ no 1013 (QL) .
Conclusion
[19]
For
the foregoing reasons, this application for judicial review is allowed. The
Minister shall, within 45 days, reassess Mr. Goulet’s application for a
transfer on the merits and in accordance with the requirements of the Act.
[20]
The
Applicant is entitled to costs under Column III.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed.
The Respondent shall, within 45 days, reassess the Applicant’s application for
a transfer on the merits and in accordance with the requirements of the Act.
THIS COURT’S FURTHER
JUDGMENT is that the Applicant is entitled to costs under Column III.
"R.L.
Barnes"
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