Date:
20110202
Docket:
T-1540-09
Citation:
2011 FC 115
Ottawa, Ontario, February 2, 2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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DAVINDER SINGH
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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]
Singh
was a 35 year old Canadian citizen serving a sentence of 8 years and 1 month in
a U.S. prison plus 3 years of supervised release. He was caught entering
the U.S.A. with 3.45 kgs of marijuana and 316 pounds of ecstasy hidden in the
trunk of his car.
[3]
The
Minister’s 1st decision denied the transfer request. That decision
was based, at least in part, on the departmental 1st assessment.
That 1st assessment concluded that after verification from
counterparts in the Security and Intelligence areas:
… the information obtained to date does not lead one
to believe that he would, after the transfer, commit an act of terrorism or
criminal organization offence … . However, given the nature of the offence, it
appears to be an organized crime in nature.
[4]
In
the 1st assessment, in dealing with the severity of the offence, the
Department concluded that the Applicant may have links to a criminal
organization.
[5]
The
Minister rejected the transfer application. The decision contained a paragraph
describing the offence, a paragraph describing the purpose of the Act and the
requirement to examine each application on its merits. The decision then gave the
reason for rejection – the possibility of committing an organized crime
offence:
Drug trafficking is deemed to have a significant
impact on the community given the possibility of an extensive victim pool of
both users and non-drug users. In light of the amount of drugs, the use of
accomplices and the applicant’s file assessment that the applicant may have
links to a criminal organization, I believe that he may, after the
transfer, commit a criminal organization offence.
[Emphasis added by
Court]
[6]
The
use of the phrase “may commit” is not consistent with s. 10(2)(a) of the
Act. The Minister’s 1st decision was issued prior to Justice Barnes’
decision in Grant v. Canada (Minister of Public Safety and Emergency
Preparedness), [2010] F.C.J. No. 386, where Justice Barnes emphasized the
legal requirement to determine whether an applicant will commit a
criminal organization offence.
[7]
Although
judicial review proceedings were commenced, as requested, the Minister
undertook a reconsideration of this 1st decision.
[8]
The
2nd departmental assessment concluded, with respect to the
likelihood of committing a terrorism offence or criminal organization offence,
that it was unlikely. On this issue the 2nd assessment concluded:
the information obtained to date does not lead one
to believe that he would, after the transfer, commit an act of terrorism or criminal
organization offence, within the meaning of section 2 of the Criminal Code.
[9]
On
the matter of organized crime, the 2nd assessment dropped the
reference to the offence appearing to be an organized crime offence and it
concluded:
… Intelligence information does not identify Mr.
Singh as a key player or as having links to an organized crime group …
[10]
In
the face of the 2nd assessment, the Minister rejected the transfer
application. In the 2nd decision, similar in structure to the 1st
decision, the Minister identified his duty under s. 2 to consider whether the
offender will, after the transfer, commit a criminal organization
offence. Whether the change in wording is more a matter of form rather than
substance need not be decided. In assessing that factor, the Minister recited
the facts of the offence.
[11]
In
the penultimate paragraph which sets out the rationale for rejection, the
Minister expressed concerns for the Applicant’s continuation of organized crime
activities:
I also note that the applicant was knowingly
transporting a large amount of drugs. The applicant was involved in the
commission of a serious offence that, if committed, would likely result in the
receipt of a material, including financial, benefit by the group he assisted or
any person constituting that group. This evidence leads me to have concern over
the applicant’s continuation of organized crime activities.
[12]
The
Minister may reach a conclusion which is at odds with the advice he is receiving.
He may weigh stipulated and other factors differently. However, it is incumbent
on the Minister to explain how he could reach the conclusion or concern.
[13]
In
this case, the Minister had to explain how he was concerned that the Applicant
would continue his organized crime activities when the evidence was that the
Applicant had no links to organized crime. The need for reasoned explanation is
even more acute when the information from Correctional Service Canada’s counterparts
in Security and Intelligence areas, and in CSIS, did not lead the departmental
advisors to believe that the Applicant would, after transfer, commit an act of
organized crime.
[14]
The
Minister’s decision does not meet the requirements for transparency, intelligibility
and acceptability required under Dunsmuir v. New Brunswick, 2008 SCC 9.
The reasons are wholly inadequate as they leave one guessing as to how the
Applicant could continue criminal organization activities when he had no links
to such organizations and where there is no finding that his drug importation
offence was a criminal organization offence. In these circumstances and against
the background of the advice received, there is a requirement for an
articulation of how the Minister reached his conclusion.
[15]
The
Respondent relied on a quote from Dunsmuir to suggest that if, in some
fashion, the Minister might have been justified in rejecting the transfer
application even though the reasons did not provide such justification, the
Court must uphold the decision.
[16]
The
quote in question arises in the context of the discussion of “deference”. At
paragraph 48 of Dunsmuir, above, the Supreme Court said:
… We agree with David Dyzenhaus where he states that the concept
of “deference as respect” requires of the courts “not submission but a
respectful attention to the reasons offered or which could be offered in
support of a decision”: …
[17]
The
reliance on “could be offered” could not mean that the Court is required to
determine what the reasons should be, given the evidence. To do so would
seriously undermine the standard of reasonableness based upon the existence of
justification, transparency and intelligibility referred to in the previous
paragraph of the Dunsmuir judgment.
[18]
In
this case, the Court must take the reasons as the Minister gave them and assess
their reasonableness against the above criteria.
[19]
Absent
an explanation of how the Minister arrived at his conclusion in the face of the
evidence set forth in the departmental assessment, the Court cannot find the
Minister’s decision to be reasonable. It would be pure speculation to divine
how the Minister arrived at his conclusion. The Minister had a duty to explain,
which duty was not met. Therefore, this Court finds the decision to be
unreasonable.
III. CONCLUSION
[20]
This
judicial review will be granted, the decision quashed, and the matter
redetermined on its merits within 60 days of the date of this judgment. The
Applicant shall have his costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that the judicial
review is granted, the decision is quashed, and the matter is to be
redetermined on its merits within 60 days of the date of this judgment. The
Applicant is to have his costs.
“Michael
L. Phelan”
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