Date: 20110202
Docket: T-1716-09
Citation: 2011
FC 112
Ottawa, Ontario, February 2,
2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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PERLEY HOLMES
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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 part of five such cases brought to the Court dealing with
applications by Canadian citizens, who are prisoners in the United States, to
transfer to Canada to serve out the remainder of their U.S. courts’ sentence.
The original decision by the Minister of Public Safety and Emergency
Preparedness (Minister) was the basis for the judicial review.
[2]
These
cases were also part of a series of cases for which there were applications to
the Minister for reconsideration. In some of the instances, the Minister
granted the reconsideration and approved the transfer – however, these five
cases were cases where, on reconsideration, the transfers were still not
approved.
[3]
In
each reconsideration, the Minister (a new Minister) rendered a new decision and
denied the transfer request - sometimes for slightly different reasons. In the
normal course, the Respondent would have brought, with likely success, a motion
to strike the judicial reviews on the grounds of mootness.
By agreement
however, the parties proceed on the basis of the new decisions but for all the
grounds and arguments raised in respect to the original decisions.
[4]
All
five cases raise the question of (a) whether s. 6 of the Charter is
breached by virtue of the International Transfer of Offenders Act, S.C.
2004, c. 21 (Act) because it impedes a citizen’s right to enter Canada; (b) whether
the Act is saved by s. 1 of the Charter; and (c) whether the Minister’s
decision is reasonable.
[5]
As
this is a case where the Minister’s decision is found to be sustainable, the
issue of Charter rights is relevant. In those cases where the Minister’s
decision does not meet the requirements of administrative law, a decision on Charter
rights is not necessary.
II. LEGISLATIVE
FRAMEWORK – INTERNATIONAL TRANSFER OF OFFENDERS ACT
[6]
The
Act is a response, in part, to a series of international agreements and
treaties, all directed at permitting a citizen of one country to serve some or
all of the sentence imposed by a foreign court in his or her home country.
[7]
The
Act’s Purpose clause sets out three purposes for this legislation: contribution
to the administration of justice; the rehabilitation of offenders; and their
reintegration into the community.
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.
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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
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[8]
The
Applicants have argued that the term “administration of justice” does not
include the concept of public security and safety. To the extent that the
Minister relied on public safety and security concepts in refusing the transfer
requests, it is argued that the Minister took an irrelevant factor into account
because “public safety and security” is a matter separate from administration
of justice.
[9]
With
respect, such a view of “administration of justice” is far too narrow given the
context in which those words appear. While the term may not cover the whole
panoply of items considered “administration of justice”, the term used in the
context of persons who have committed crimes (some being violent) would include
public safety and security considerations.
[10]
Given
the Respondent’s position which is consistent with the Court’s conclusion, it
is curious that proposed legislation intends to add “to enhance public safety
and security” as a further purpose of the legislation. It is not for the Court
to comment on proposed legislation even though it was raised by the parties.
[11]
In
determining whether to consent to a transfer of a Canadian offender to Canada, the
Minister is required to consider the following factors:
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.
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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.
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In addition, when considering whether to
consent to the transfer of either a Canadian offender or a foreign offender,
the Minister must consider two other factors.
10.
(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.
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10.
(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).
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[12]
There
appears to be general agreement that these factors are not exhaustive. The
Minister may take into account other factors so long as they are relevant to
the purposes of the Act.
[13]
With
respect to s. 10(2)(a) and whether an offender will commit a
terrorism offence or criminal organization offence, or, as used in some of the
first Ministerial decisions in the cases before the Court, “may” commit that
type of offence, Justice Barnes in Grant v. Canada (Minister of Public
Safety and Emergency Preparedness, [2010] F.C.J. No. 386, made it clear
that the use of “may” is not consistent with the legislation. Decisions based
upon a consideration that an applicant may commit a terrorism offence or
criminal organization offence would be grounds justifying the grant of judicial
review.
[14]
In
some of the new decisions at issue here, the error in using “may” was
corrected. The real issue is not the cosmetics of the word but whether the
Minister’s discretion was exercised consistent with the certitude of the
likelihood of the commission of those offences. The issue is whether it is reasonable
to conclude that an applicant will, after transfer, commit those
offences.
III. CHARTER
RIGHTS
[15]
The
Court has been asked to determine whether the Act offends s. 6 of the Charter’s
mobility right to enter. The Court must only decide this issue if the
Minister’s decision is reasonable. In the present circumstances, as some of the
Minister’s decisions are reasonable, the Court must address that issue.
[16]
The
Applicants have argued that this Court has made inconsistent findings on
whether s. 6 is offended by the Act. The Applicants point to Van Vlymen v. Canada (Solicitor
General),
2004 FC 1054, in which Justice Russell suggested that s. 6 was engaged by the
Act because the Act acted as a restriction on a citizen’s mobility right to
enter Canada. As a matter
of judicial comity, it was argued that this line of reasoning should have been
followed.
[17]
However,
this Court in Kozarov v. Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 866 (Justice Harrington) and Getkate v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 965 (Justice
Kelen), concluded that s. 6 was not so engaged. Justice Harrington
distinguished the Van Vlymen decision.
[18]
The
Applicants also argue that this Court in Curtis v. Canada (Minister of
Public Safety and Emergency Preparedness), 2010 FC 943, and Dudas
v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC
942, concluded that s. 6 was engaged but that the Act was saved by s. 1 of the Charter
as a “reasonable limitation” on Charter rights.
[19]
The
Applicants read into some of the decisions far too much. In Van Vlymen,
above, the Court was dealing with mootness and delay by the Minister in making
a decision. The comments with respect to the Charter were clearly obiter.
[20]
In
Curtis, above, and in Dudas, above, the Court’s ruling turned on
the unreasonableness of the Minister’s decision. The Court acknowledged the
decisions in Kozarov, above, and Getkate, above, and concluded
simply as an alternative position that even if s. 6 of the Charter was
engaged, s. 1 saved the Act – a conclusion reached without an articulation of
the s. 1 factors.
[21]
In
Kozarov, above, and Getkate, above, this Court squarely dealt
with the s. 6 issue and concluded that the Act did not offend s. 6. In that
respect, I adopt the conclusions of these decisions not simply out of respect
for judicial comity but because those decisions are a correct articulation of
the law.
[22]
In
United States of America v. Cotroni, [1989] 1 S.C.R. 1469, the Supreme
Court, in dealing with the Extradition Act where the state effectively
ejects one of its citizens to a foreign jurisdiction (thereby engaging s. 6),
spoke of one of the principles behind s. 6 being the prevention of banishment
and exile. Justice La Forest even
addressed the circumstance of Canadian offenders in foreign incarceration and
the suspension of their right to return until after they have served their
time.
An accused may return to Canada following his trial and acquittal or, if he has been convicted,
after he has served his sentence. The impact of extradition on the rights of a
citizen to remain in Canada appears to me to be of secondary importance. In fact, so far as
Canada and the United
States are
concerned, a person convicted may, in some cases, be permitted to serve his
sentence in Canada; see Transfer of
Offenders Act, S.C. 1977-78, c. 9.
Cotroni, above, at para. 20
[23]
The
mechanics of the Act require three consents to transfer; consent of the
accused, consent of the foreign government and consent of the Canadian government.
The foreign government will not transfer the person to Canada unless Canada consents.
The Charter cannot be read as requiring the Canadian government to
consent so that the citizen is brought to the Canadian border where he can
exercise his Charter right to enter.
[24]
In
considering the applicability of the Charter, it is necessary to
consider what the applicant/citizen is truly seeking. The request is the very
antithesis of mobility rights. The request to transfer is not a request to
allow the citizen to come to Canada to exercise those mobility rights; indeed,
it is a request to come to Canada to do the very opposite of exercise mobility
– to remain imprisoned.
[25]
The
Applicants are neither seeking to exercise their mobility rights nor are those
rights infringed by awaiting the completion of their U.S. sentences at which
time they would, either by way of deportation or by their own accord, be
entitled to leave the U.S.A. and enter Canada.
[26]
The
Applicants have, by their own conduct, placed a restriction on their Charter
rights by being sentenced to prison in the U.S.A. To accept
the Applicants’ position would be to turn a discretionary remedy to serve time
in Canada into a
right. There is no provision in the Act nor any factor to be considered under
the Act which violates the Charter. The listed factors are merely those
which must be considered by the Minister.
[27]
Since
there is no specific provision of the Act to be struck down, then if the Act
itself is contrary to the Charter, it would be struck down and eliminate
any means by which a Canadian prisoner could be transferred to a Canadian
prison. This hardly seems to be of assistance to any of the Applicants or to
any other Canadian imprisoned in the U.S.A.
[28]
Therefore,
s. 6 of the Charter is not engaged by virtue of an application for
Ministerial consent to the transfer of one or more of these Applicants.
[29]
Even
if s. 6 is infringed, any infringement would be saved by s. 1. In Cotroni,
above, the Supreme Court noted that extradition was at the edge of infringement
in the sense of it being a minor infringement of s. 6. Extradition is a form of
exile or banishment.
[30]
In
the present cases, any infringement of Charter rights by virtue of the
Act is no more than temporary and thus not as significant as extradition. In that
sense, any infringement caused by the Act is even further from the centre of s.
6 mobility principles than is extradition.
[31]
Applying
the R. v. Oakes, [1986] 1 S.C.R. 103 analysis, the Court must examine
the objectives served by the limits on s. 6 and the means used to obtain those
objectives. The Court concludes, for the reasons below, that any infringement
of s. 6 rights is saved by s. 1.
[32]
The
objectives are pressing and substantial. Canada has an interest in the welfare
of its citizens, in their rehabilitation and reintegration but also in ensuring
that punishment by countries with whom Canada has relevant
treaties is respected. Those interests are reflected in the Act.
[33]
The
purposes of the Act, being the administration of justice, rehabilitation and reintegration,
are addressed and lie at the core of the legislative scheme. The protection of
society and the best interests of the Canadian citizen prisoner are balanced in
the Act through the factors which the Minister is required to consider.
[34]
There
is a rational connection between the factors which the Minister must consider
and the objectives of the legislation. The Applicants’ criticism that s. 10(2)(a)
(the likelihood of committing a terrorism or organized crime offence) is not
rationally connected to the goal of rehabilitation and reintegration is not
sustainable.
[35]
That
particular factor (s. 10(2)(a)) addresses both the need to protect
society and the utility of attempting to rehabilitate a person who will
continue the same kind of conduct that has led to his or her incarceration. The
fact that other offences might have fallen into this factor but have not, is
not grounds for striking out the legitimacy of inclusion of terrorism and
organized crime offences.
[36]
The
Act, and in particular the factors to be considered, are a minimum impairment
of such s. 6 rights as exist in respect of prisoner transfer. The
infringement, being at the outer edges of the core Charter value to be
protected, impacts the assessment of the minimum impairment of the Charter
right impacted.
[37]
The
impact, even of s. 10(2)(a) of the Act, is minimal. The argument that s.
10(2)(a) is a significant impairment ignores the consideration that
persons who will (again) engage in these offences undermine the beneficial objectives
of the Act.
[38]
Further,
none of the factors to be considered, including s. 10(2)(a), are
determinative of the result. They are simply factors to be weighed by the
Minister in a reasonable and transparent way. They do not, in and of
themselves, create an infringement of s. 6 and thus their impact per se is
minimal.
[39]
The
means and their effects are proportional to the purposes of the Act and to the
nature and quality of the Charter value impacted. There are no
deleterious effects associated with the factors specified under the Act and
none of these mandate a refusal to consent to a transfer.
[40]
The
Applicants’ suggestion that once the foreign country consents to a transfer,
the Minister is virtually obliged by virtue of s. 6 of the Charter to
consent to the transfer, ignores the fact that the prisoner has put himself in
the position of restricting his freedoms; ignores the goals of rehabilitation
by assuming that no other country can rehabilitate a person; ignores the
particular individual circumstances of reintegration by assuming that all
Canadian citizens have long and deep connections in Canada and ignores
the secondary purposes of the Act in respecting the rule of law in other
countries and respecting international relations.
[41]
For
these reasons, the Court has concluded that even if s. 6 was infringed by the
Act, it is saved by s. 1.
IV. STANDARD
OF REVIEW
A. Reasons/Adequacy
- Reasonableness
[42]
Where
a ministerial decision has profound impact on an applicant, there is a
requirement to inform the person of why a particular result is reached. This is
so even where a Minister has a broad discretion. Having said that, the duty to
give reasons and the adequacy of reasons do not necessarily require the full
analytical force of a Supreme Court of Canada judgment.
[43]
The
Court of Appeal in Vancouver International Airport Authority v. Public
Service Alliance of Canada, 2010 FCA 158, at paragraphs 16 and 17, set
forth the purposes of adequate reasons as follows:
16 Where,
as here, an administrative decision-maker, acting under a procedural duty to
receive and consider full submissions, is adjudicating on a matter of
significance, what sort of reasons must it give? From the above authorities,
and bearing in mind a number of fundamental principles in the administrative
law context, the adequacy of the decision-maker's reasons in situations such as
this must be evaluated with four fundamental purposes in mind:
(a) The
substantive purpose. At least in a minimal way, the substance of the
decision must be understood, along with why the administrative decision-maker
ruled in the way that it did.
(b) The
procedural purpose. The parties must be able to decide whether or not to
invoke their rights to have the decision reviewed by a supervising court. This
is an aspect of procedural fairness in administrative law. If the bases
underlying the decision are withheld, a party cannot assess whether the bases
give rise to a ground for review.
(c) The
accountability purpose. There must be enough information about the decision
and its bases so that the supervising court can assess, meaningfully, whether
the decision-maker met minimum standards of legality. This role of supervising
courts is an important aspect of the rule of law and must be respected: Crevier
v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Dunsmuir, supra
at paragraphs 27 to 31. In cases where the standard of review is
reasonableness, the supervising court must assess "whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law": Dunsmuir, supra at paragraph
47. If the supervising court has been prevented from assessing this because too
little information has been provided, the reasons are inadequate: see, e.g.,
Canadian Association of Broadcasters, supra at paragraph 11.
(d) The
"justification, transparency and intelligibility" purpose: Dunsmuir,
supra at paragraph 47. This purpose overlaps, to some extent, with the
substantive purpose. Justification and intelligibility are present when a basis
for a decision has been given, and the basis is understandable, with some
discernable rationality and logic. Transparency speaks to the ability of
observers to scrutinize and understand what an administrative decision-maker
has decided and why. In this case, this would include the parties to the
proceeding, the employees whose positions were in issue, and employees,
employers, unions and businesses that may face similar issues in the future.
Transparency, though, is not just limited to observers who have a specific
interest in the decision. The broader public also has an interest in
transparency: in this case, the Board is a public institution of government and
part of our democratic governance structure.
17 The
reasons of administrative decision-makers in situations such as this must
fulfil these purposes at a minimum. As courts assess whether these purposes
have been fulfilled, there are a number of important principles, established by
the authorities, to be kept firmly in mind:
(a) The
relevancy of extraneous material. The respondent emphasized that
information about why an administrative decision-maker ruled in the way that it
did can sometimes be found in the record of the case and the surrounding
context. I agree. Reasons form part of a broader context. Information that
fulfils the above purposes can come from various sources. For example, there
may be oral or written reasons of the decision-maker and those reasons may be
amplified or clarified by extraneous material, such as notes in the
decision-maker's file and other matters in the record. Even where no reasons
have been given, extraneous material may suffice when it can be taken to
express the basis for the decision. Baker, supra, provides us
with a good example of this, where the Supreme Court found that notes in the
administrative file adequately expressed the basis for the decision. See also Hill
v. Hamilton-Wentworth Police Services Board, [2007] 3 S.C.R. 129 at
paragraph 101 for the role of extraneous materials in the assessment of
adequacy of reasons.
(b) The
adequacy of reasons is not measured by the pound. The task is not to count
the number of words or weigh the amount of ink spilled on the page. Instead,
the task is to ask whether reasons, with an eye to their context and the
evidentiary record, satisfy, in a minimal way, the fundamental purposes, above.
Often, a handful of well-chosen words can suffice. In this regard, the
respondent emphasized that very brief reasons with short-form expressions can
be adequate. That is true, as long as the fundamental purposes, above, are met
at a minimum. In this regard, the respondent cited the example of the Board
sometimes issuing orders without reasons. Whether such orders are adequate
depends on the facts of a specific case, but the methodology for assessing
adequacy is clear: the preambles, recitals and provisions of the orders, when
viewed with an eye to their context and the evidentiary record, must satisfy,
in a minimal way, the fundamental purposes, above.
(c) The
relevance of Parliamentary intention and the administrative context.
Judge-made rulings on adequacy of reasons must not be allowed to frustrate
Parliament's intention to remit subject-matters to specialized administrative
decision-makers. In many cases, Parliament has set out procedures or has given
them the power to develop procedures suitable to their specialization, aimed at
achieving cost-effective, timely justice. In assessing the adequacy of reasons,
courts should make allowances for the "day to day realities" of
administrative tribunals, a number of which are staffed by non-lawyers: Baker,
supra at paragraph 44; Clifford v. Ontario Municipal Employees
Retirement System (2009), 98 O.R. (3d) 210 at paragraph 27 (C.A.).
Allowance should also be given for short-form modes of expression that are
rooted in the expertise of the administrative decision-maker. However, these
allowances must not be allowed to whittle down the standards too far. Reasons
must address fundamental purposes - purposes that, as we have seen, are founded
on such fundamental principles as accountability, the rule of law, procedural
fairness, and transparency.
(d) Judicial
restraint. The court's assessment of reasons is aimed only at ensuring that
legal minimums are met; it is not an exercise in editorial control or literary
criticism. See Sheppard, supra at paragraph 26.
[44]
In
the present case and given the importance of the Minister’s decision to the
Applicant and society in terms of administration of justice, rehabilitation and
reintegration, the substantive purpose and the “justification, transparency and
intelligibility” purposes are particularly important.
[45]
Therefore,
the Minister’s decision must meet the above standard to meet the
“reasonableness” standard of review required by Dunsmuir v. New
Brunswick,
2008 SCC 9.
[46]
The
controlling issue in this particular judicial review is whether the Minister’s
refusal to consent to the transfer is reasonable. As noted in the discussion on
Legislative Framework, the Minister’s discretion is broad and the deference
owed to the Minister’s assessment of relevant factors is significant.
[47]
The
normal operation of the handling of these prisoner transfer requests was for
the Department (Correctional Service Canada) to prepare a report for the
Minister (the report is referred to as an “assessment” through this and the
related proceedings). The assessment outlines the Department’s views of the
facts and provides advice on the relevant factors for the Minister’s
consideration. The Minister then renders a decision containing the reasons
which is served on an applicant under a cover letter from an official in the Department.
V. FACTUAL
BACKGROUND
[48]
Holmes
is approximately 53 years old. He is a Canadian citizen serving a sentence in
the U.S.A. of 8 years
to be followed by a period of 5 years’ supervised release.
[49]
Holmes’
case had some notoriety as it involved hiking across the border from British
Columbia
to the U.S.A. with an
accomplice and being arrested while resting under a tree. The accomplice
escaped back across the border and has not been found.
[50]
Between
October and November 2006, Holmes was approached by an individual wanting to
use his home (which is located close to the border) as part of a smuggling
operation for items from the U.S.A. to Canada. He was to
be paid $20,000 cash each time the property was so used.
[51]
On
January 18, 2007, a U.S. Border Patrol agent found a suspicious truck about 1
kilometre inside the U.S.A. border. Following footprints he discovered
Holmes and his accomplice. A search of the backpacks found at the site revealed
136 pounds of cocaine. Holmes was convicted of drug importation and sentenced.
[52]
In
the original departmental 1st assessment forwarded to the Minister
for his consideration, officials believed that Holmes had links to organized
crime because he was involved in the trafficking of cocaine across the border.
Officials also advised that there was no evidence that Holmes was anything
other than a courier and that as such, he only posed a limited risk to the
community despite the quantity of drugs he was transporting.
[53]
In
the Minister’s 1st refusal decision, the Minister cited his need to
consider the interests of Canadians, the national interest and “many different
decision making factors …”. The Minister stated that these factors were
consistent with the legislation which includes but goes beyond the enumerated
factors provided by s. 10 of the Act.
[54]
The
Minister then refers to the Applicant and that, if transferred, he would not
have the 5 years’ supervised release, and that this important
rehabilitation purpose would not be served. He concluded that this consequence
would not be in the interests of or consistent with the goal of administration
of justice.
[55]
In
respect of the specific s. 10 factors, the Minister concluded that the
Applicant had links to organized crime, and that there was significant planning
and financial support behind the criminal activity. As such, this criminal
activity was not acceptable in the general context of the administration of
justice nor with s. 10(1)(a) and (2)(a) of the Act.
[56]
The
Minister then concludes that for some reasons which rely on the specifically
enumerated factors under the Act, and for other reasons which rely on factors
consistent with the Act which are available to him as part of his residual
decision making authority, the transfer was refused.
[57]
In
the 2nd assessment, prepared as part of the reconsideration process,
Holmes’ role was described as that of a mere courier for a criminal
organization with no leadership role. The 2nd assessment went on to
report numerous positive aspects including rehabilitation, strong family ties,
lack of a criminal record and potential for reintegration.
[58]
The
Minister’s 2nd decision is significantly different from the 1st
decision (made by a different Minister). There are no longer references to non-enumerated
factors and influences which would, in the Court’s view, have seriously
imperilled the legality of that 1st decision.
[59]
In
this 2nd decision the Minister focused on the potential for
commission of a criminal organization offence. He noted the knowing use of the
Applicant’s residence for criminal activities, the payment for its use and the
smuggling activities conducted. He further noted the amount of drugs smuggled,
the participation of an unidentified (presumably by the Applicant) accomplice
and the long-term implications on Canadian society had the Applicant been
successful.
[60]
The
Minister, in reaching his negative conclusion on the transfer application,
noted the positive aspects of Holmes’ situation including the strong family
support, lack of criminal record and rehabilitation efforts.
[61]
With
respect to the reasonableness of the decision, it is evident that the Minister
weighed the aspects of administration of justice, such as the nature of the
offence, its circumstances and consequences, more heavily than the other
purposes of the Act – rehabilitation and reintegration. However, he did not
ignore these other purposes. The Applicant’s challenge to the Minister’s
decision is a challenge to the relative weight the Minister gave.
[62]
While
it is arguable that Holmes appears to be a perfect candidate for transfer given
the strong facts of rehabilitation and reintegration, the very essence of
deference in this case is to acknowledge that having addressed the relevant
considerations, the actual weighing or balancing is for the Minister to conduct.
Absent unreasonableness or bad faith or similar such grounds, it is not for the
Court to supervise the Minister.
[63]
There
is nothing unreasonable in the Minister’s decision; it takes into consideration
the relevant factors and imports no new and unknown factors, and it is
intelligible and transparent as to how the Minister came to his conclusion. It
therefore meets the requirements of law and should not be disturbed.
VI. CONCLUSION
[64]
Therefore,
this judicial review will be dismissed without costs; the issues raised are
important public policy matters.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial review is dismissed without
costs; the issues raised are important public policy matters.
“Michael L. Phelan”