Date: 20110202
Docket: T-1535-09
Citation: 2011 FC 114
Ottawa, Ontario, February 2,
2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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MEHDI VATANI
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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
I. INTRODUCTION
[1]
This
judicial review is another of the series of judicial reviews of
reconsiderations by the Minister of initial decisions not to approve requests
for transfer from U.S. prisons to Canadian prisons pursuant to the International
Transfer of Offenders Act, S.C. 2004, c. 21. The overarching
principles, to the extent relevant to consideration of this and related
judicial reviews, are set forth in Holmes v. Canada (Minister of
Public Safety and Emergency Preparedness), 2011 FC 112.
II. FACTUAL
BACKGROUND
[2]
Vatani
was a 30 year old first offender who was sentenced to imprisonment for 10 years
in the U.S.A. followed by 5
years of supervised release. He had been stopped for speeding and a search of
his vehicle uncovered 48 kgs of cocaine which Vatani was in the process of
delivering to another person.
[3]
In
the 1st transfer decision, the then Minister concluded that based on
the volume of drugs involved and Vatani’s actions, Vatani will, after transfer,
commit a criminal organization offence. On that basis the transfer request was
refused.
[4]
The
Minister’s 1st decision was inconsistent with the overall thrust and
specific advice of the departmental assessment. That assessment noted the
strong and practical family support Vatani had. Most importantly, it advised
that there was an absence of any evidence upon which to base a conclusion that
he would, after transfer, commit an “act of organized crime”. Further, the Department
confirmed Vatani’s limited role as “a mule” and the absence of any information
to suggest that he was a key player in or had links to a criminal organization.
[5]
The
Minister’s decision does not give any explanation for his conclusion in the
face of the contradictory evidence from his own Department.
[6]
In
the reconsideration process, the Department’s 2nd assessment was
essentially the same as its 1st assessment. It added to the 2nd
assessment evidence that it was unlikely that Vatani would re‑offend
after release.
[7]
In
the Minister’s 2nd decision, on the issue of likelihood that Vatani
would commit an organized criminal offence, the Minister noted that Vatani knew
he was transporting drugs and that if he had been successful, it would have
resulted in financial gain to the group he was assisting. The Minister did note
family support, remorse and Vatani’s rehabilitation efforts; however, the
transfer request was denied.
III. ANALYSIS
[8]
In
the Minister’s decision, there is no explanation of how the Minister arrived at
his conclusion that Vatani would commit a criminal organization offence in the
face of the Department’s assessment, particularly in this regard where there
was intelligence information on the issue relied upon by departmental
officials.
[9]
Quite
apart from not addressing the cogent evidence and advice to the contrary of the
Minister’s conclusion, there is no explanation of how Vatani’s knowledge and
actions as well as the expected gain would support a conclusion that he would
(“will”) commit such an offence. There is no apparent logical connection
articulated between those factors and the conclusion reached. There is even
less support for the Minister’s conclusion in view of the other facts reported
by the Department.
[10]
The
Minister does not explain how the purpose of the Act is not achieved by a
transfer in this case. In addition to the failure to address key evidence and
advice which runs contrary to the Minister’s conclusions, those conclusions
lack intelligibility, transparency and acceptability under the principles
outlined in Dunsmuir v. New Brunswick, 2008 SCC 9.
[11]
The
Minister may come to conclusions different from departmental advice but there
must be a clear rationale stated; otherwise, the decision is arbitrary.
IV. CONCLUSION
[12]
For
these reasons, this judicial review will be granted, the Minister’s decision
quashed and the matter re-determined on its merits within 60 days of the date
of judgment. The Applicant shall have his costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the judicial review is granted, the Minister’s
decision is quashed and the matter is to be re-determined on its merits within 60
days of the date of judgment. The Applicant is to have his costs.
“Michael
L. Phelan”