Date: 20110202
Docket: T-1876-09
Citation: 2011 FC 116
Ottawa, Ontario, February 2,
2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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JAMES DOWNEY
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
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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]
Downey was
convicted of conspiracy to import and distribute 100 kgs or more of marijuana
and hash oil and sentenced to 14 years in U.S. prisons and 4
years of supervised release. Downey’s primary role in the importation scheme
was to recruit other participants into the scheme.
[3]
The
Applicant’s initial application for transfer was rejected by the then Minister
on August 6, 2009. In that 1st decision, the Minister described
the offence and the purpose of the International Transfer of Offenders Act,
and the requirement to examine each application on its merits. The operative
part of the Minister’s decision was a statement of the significant adverse
impact of drugs on society and a conclusion that given the Applicant’s actions,
“he may, after the transfer, commit a criminal organization offence”.
[4]
In
this regard, the Minister’s conclusions were consistent with the departmental
assessment.
[5]
As
with other cases under review, the current Minister conducted a new examination
of this Applicant’s request and it is that new decision which is the basis of
this judicial review.
[6]
In
the Department’s 2nd assessment provided to the Minister on the
reconsideration, the Department advised that the information obtained did not
lead one to believe that Downey posed a threat to Canada nor that he
would, after the transfer, commit an act of terrorism or organized crime.
[7]
In
the Minister’s 2nd decision, the Minister focused primarily on the
seriousness of the crime and concluded that had it been completed successfully,
it would have had long-term implications on society. Without further
explanation and having noted the positive effect of family support, the
Minister denied the transfer request.
III. ANALYSIS
[8]
As
held in related cases, the Minister’s decision is subject to the reasonableness
standard of review with deference to the discretion in the Minister’s hands.
[9]
However,
in this case, it is difficult, if not impossible, to discern what the true
basis of the Minister’s decision is. The Minister “notes” a number of facts but
does not tie these notations into relevant conclusions. The description of the
crime and its possible impact on society tells one nothing about why a transfer
to a Canadian prison is not warranted. This decision lacks logical reasons and
does not adhere to the Dunsmuir v. New Brunswick, 2008 SCC 9,
principles of transparency, intelligibility and acceptability.
[10]
The
best that the Court can divine from this recitation of facts is that the Minister
believed, as did the previous Minister, that Downey might commit
a criminal organization offence because of his involvement with others, his
criminal record and the nature of the offence. Neither the Applicant nor the
Court should be forced to speculate on the Minister’s reasons to give them some
legitimacy.
[11]
The
departmental assessment is directly to the contrary of the Minister’s
conclusions with respect to the likelihood of committing a criminal
organization offence. While the Minister is not bound by his Department’s advice,
it is incumbent on the Minister to advance his reasons for coming to a
different conclusion.
[12]
The
difficulty with the approach taken in this case is that a series of Ministerial
“notations” does not necessarily explain the reasons for the decision. In
response to the Respondent’s request for guidance, a more helpful approach to
these notations would have been to then state what conclusion the Minister drew
from them.
IV. CONCLUSION
[13]
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”
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