Docket: T-1520-10
Citation: 2011
FC 1433
Ottawa, Ontario, December 7, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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FRANCO TANGORRA
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Applicant
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and
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MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Franco Tangorra is a Canadian citizen who is serving a prison sentence in the United States for drug
trafficking. He applied to the Minister of Public Safety and Emergency
Preparedness for a transfer to Canada in order to serve the remainder of his
sentence here. The Minister denied Mr. Tangorra’s application.
[2]
Mr.
Tangorra argues that the Minister’s decision was based on allegations to which
he was not given an opportunity to respond and, therefore, that the decision
was arrived at unfairly. He also submits that the Minister’s decision was
unreasonable because it was unsupported by the evidence. He asks me to overturn
the decision and order the Minister to reconsider.
[3]
I
agree with Mr. Tangorra that the Minister’s decision should be overturned. I
must, therefore, allow this application for judicial review.
[4]
The
main issue is whether the Minister’s decision was unreasonable. Since I agree
with Mr. Tangorra that the Minister’s decision was unreasonable, it is
unnecessary to consider separately the issue of unfairness. In my view, on the
facts of this case, the two issues run together.
II. The Legislative Framework
[5]
Canadian
offenders incarcerated in foreign states can request a transfer of their
sentences to Canada. A transfer
requires the consent of the foreign state and the Minister.
[6]
In
deciding whether to consent, the Minister must consider the factors set out in
ss 10(1) and (2) of the International
Transfer of Offenders Act,
SC 2004, c 21 (see
Annex for statutory provisions cited). Those factors include whether:
• the offender’s return would
constitute a threat to Canadian security;
• the offender has social or
family ties in Canada; and
• the offender will,
in the Minister’s opinion, commit a terrorism offence or criminal organization
offence after the transfer within the meaning of s 2 of the Criminal Code,
RSC 1985, c C-46.
[7]
In
addition to the statutory factors, the Minister may also consider other factors
that are relevant to the purposes of the Act (see Holmes v Canada (Minister
of Public Safety and Emergency Preparedness), 2011 FC 112, at para 12; Balili
v Canada (Minister
of Public Safety and Emergency Preparedness), 2011 FC 396, at para 3).
III. The Minister’s Decision
[8]
The
Minister denied Mr. Tangorra’s request for a transfer. In his reasons, the
Minister cited the purposes underlying the Act. By enabling offenders to serve
their sentences in their countries of origin, the Act contributes to the
administration of justice, the rehabilitation of offenders, and the reintegration
of offenders into the community. In turn, these purposes enhance public safety.
[9]
Turning
to Mr. Tangorra’s particular circumstances, the Minister noted that he was
serving a sentence of seven years and three months in the United States for
“conspiracy to possess with intent to distribute” MDMA (known as “Ecstasy”), plus
two years of supervised release. He then summarized the offence. In August
2007, Mr. Tangorra had made arrangements to provide 30,000 units of MDMA to a
person who later turned out to be an undercover agent. Over the course of the
next several weeks, Mr. Tangorra sent the drugs to the agent by mail; the drugs
were concealed in motorcycle helmets. He was arrested in October 2007 when he
attempted to collect payment.
[10]
The
Minister observed that he had to consider whether, in his opinion, Mr. Tangorra
would, after the transfer, commit a criminal organization offence as defined in
s 2 of the Criminal Code. He noted that Mr. Tangorra had sold drugs to
another person and that the circumstances suggested that other persons were
involved but not apprehended. He alluded to information in Mr. Tangorra’s file
that identified him as being linked to organized crime. The Minister then
stated that Mr. Tangorra had committed a serious offence involving a large
quantity of drugs that would have yielded a material or financial benefit for
the “group” he had assisted. His conduct involved the planning and execution of
a number of steps that had been taken for financial purposes.
[11]
The
Minister concluded that, given the unique facts and circumstances of Mr.
Tangorra’s application and the relevant factors, a transfer would not achieve
the purposes of the Act.
IV. Was the Minister’s decision
unreasonable?
[12]
The
Minister based his decision on the purposes of the Act, and the relevant
factors. The Act’s purposes are as follows:
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Purpose
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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Objet
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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[13]
The
Act is meant to enable offenders to serve their sentences in their countries of
origin. This aids their rehabilitation and reintegration into society, and
advances the administration of justice. In turn, as the Minister explicitly
acknowledged in Mr. Tangorra’s case, these purposes enhance public safety.
[14]
The
factors the Minister must consider in deciding whether these purposes are served
in an individual case are specified in the Act but, as mentioned, those factors
are not exhaustive. The Minister can consider other factors that serve the Act’s
purposes.
[15]
Here,
the Minister had before him a considerable record relating to Mr. Tangorra. The
following is a summary of the evidence as it relates to the relevant purposes
and factors in the Act, as prepared by the Correctional Service of Canada [CSC]
and put before the Minister:
• there was no
reason to believe Mr. Tangorra’s return to Canada would pose any security threat;
• there was no
indication that Mr. Tangorra had intended to abandon Canada as his place of residence;
• Mr. Tangorra’s social and
family ties in Canada were very supportive;
• the U.S. prison system posed no threat to Mr.
Tangorra’s security;
• there was no
reason to believe that Mr. Tangorra would commit an act of terrorism in Canada;
• Mr. Tangorra was linked to
organized crime, but merely as a courier;
• if Mr. Tangorra
remained in the U.S., he would be deported to Canada in 2014 and would not be subject to any supervision;
• if Mr. Tangorra was
transferred to Canada, he would be assessed and a
correctional plan would be developed for him;
• Mr. Tangorra had
no previous criminal record, and no convictions for sexual offences;
• Mr. Tangorra had worked for
his father and had run his own business;
• Ms. Lucia Fosco, Mr.
Tangorra’s spouse, was a positive source of support; and
• Mr. Tangorra had
behaved well in custody, had no history of violence or sexual aggression, and was
unlikely to re-offend.
[16]
In
addition, Mr. Tangorra’s file included supportive letters from his Member of
Parliament and his lawyer. His spouse declared that he was a good husband and
father, and asked the Minister to permit his transfer so that he could visit
his daughter and the rest of the family.
[17]
The
file also included Mr. Tangorra’s medical particulars and his own explanation
for his offence. Mr. Tangorra stated that he had been suffering from financial
and medical issues and had become desperate. He was bankrupt and his mother,
daughter and nephew were experiencing serious medical issues. These pressures
led him to commit the offence at issue. His doctor confirmed that Mr.
Tangorra’s parents are unwell and would benefit from a transfer of their son to
Canada. Mr.
Tangorra acknowledged his wrongdoing and maintained that his offence was an
isolated incident.
[18]
A
decision is reasonable if it is intelligible, transparent, and represents a
defensible outcome based on the facts and the law before the decision-maker.
The relevant facts are set out above, as are the statutory criteria. The applicable
case law may be summarized as follows.
[19]
By
requiring the Minister’s consent for a transfer, the Act restricts the ability
of Canadian prisoners to return to Canada in violation of s 6 of
the Canadian Charter of Rights and Freedoms (Divito v Canada (Minister of
Public Safety and Emergency Preparedness), 2011 FCA 39, at paras
42-45). While the Act constitutes a reasonable limit on s 6 rights, the
Minister must exercise his discretion in a manner consistent with an applicant’s
Charter rights (at para 47).
[20]
According
to the Act, the Minister must give written reasons (s 11). Those reasons must
satisfy the various purposes for which reasons are required. In particular, the
reasons must communicate, in a transparent and intelligible manner, the
substance of the decision and the reason why the Minister decided as he did: Holmes,
above, at para 44, relying on Vancouver International Airport Authority v
Public Service Alliance of Canada, 2010 FCA 158, at paras 16-17.
[21]
While
the Court must afford the Minister significant deference, the Minister’s
decision must be reasonable (Holmes, above, at paras 45-46).
[22]
The
Minister is free to disagree with CSC’s analysis, but he must explain why he
disagrees (Singh v Canada (Minister
of Public Safety and Emergency Preparedness), 2011 FC 115, at para 12). This
is particularly so where CSC finds that the applicant has no ties to organized
crime, yet that is the primary basis for the Minister’s refusal (at paras
13-14; Vatani v Canada (Minister of Public Safety and Emergency
Preparedness), 2011 FC 114, at para 9; Yu v Canada (Minister of
Public Safety and Emergency Preparedness), 2011 FC 819, at para 25).
[23]
Where
the Minister relies on evidence of an alleged link to organized crime in
refusing a transfer, his failure actually to decide whether the applicant will
commit a criminal organization offence (as required by the Act) renders his
decision unreasonable (Randhawa v Canada (Minister of Public Safety and
Emergency Preparedness), 2011 FC 625, at para 4; Downey v Canada (Minister
of Public Safety), 2011 FC 116, at para 10; Yu, above, at para 26).
[24]
In
addition, where the Minister relies on an allegation that the applicant has
been involved in organized crime, he must give the applicant a chance to
respond to that evidence (Balili, above, at paras 14-15).
[25]
In
this context, “will” does not connote a certainty of the applicant’s
involvement in a criminal organization offence. The question is whether, “in
the opinion of the Minister, there is evidence that leads [the Minister] to
reasonably conclude that an organized criminal offence will be committed by the
Applicant after the transfer” (Grant v Canada (Minister
of Public Safety and Emergency Preparedness), 2010 FC 958, at para 37).
[26]
In
most of the above cases, the Minister’s decision was overturned for failure to
adhere to one or more of the applicable requirements. However, in two cases
that are somewhat similar to Mr. Tangorra’s, the Minister’s decision was
upheld.
[27]
In
Holmes, above, Justice Michael Phelan found the Minister’s decision to
be reasonable where the applicant was a mere courier for a criminal
organization. The Minister considered the various factors related to the
administration of justice, including the nature of the offence, the
circumstances and consequences of the crime, as well as the other purposes of
the Act, including rehabilitation and reintegration. The Minister took account
of the applicant’s strong family support, lack of criminal record and efforts
at rehabilitation. Justice Phelan found that, even though the applicant
appeared to be a perfect candidate for a transfer, he could not intervene in
the Minister’s decision since the Minister had considered and weighed the
relevant factors (at para 62).
[28]
Similarly,
where the applicant had ties to a criminal organization, a prior criminal
record in Canada, and had participated in a crime with a number of other
persons involving a large quantity of drugs, the Minister was entitled to
disagree with CSC’s opinion that the applicant would be unlikely to commit a
criminal organization offence (Duarte v Canada (Minister of Public
Safety and Emergency Preparedness), 2011 FC 602, at para 20).
[29]
The
question, then, is whether the Minister applied the proper factors, based his
decision on the evidence before him, explained adequately why the transfer
should be denied, and gave Mr. Tangorra an opportunity to respond to the
evidence on which he relied.
[30]
Here,
unlike in Holmes and Duarte, the Minister appears
to have relied only on one factor – the circumstances of Mr. Tangorra’s crime.
The Minister made no reference to any of the other relevant factors, such as the
security of Canada, whether the offender had abandoned Canada as a place of
permanent residence, Mr. Tangorra’s social or family ties in Canada, or the threat
presented by the foreign state’s prison system to the offender's security or
human rights.
[31]
In
fact, the Minister did not explicitly consider the likelihood of Mr. Tangorra’s
committing a criminal organization offence, which is defined as “a serious
offence committed for the benefit of, at the direction of, or in association
with” a group of three or more persons whose main purpose is to commit serious
crimes for the benefit of the group (see Criminal Code, RSC 1985, c C-46,
ss 2, 467.1(1)). Nor did the Minister explain why he discounted CSC’s opinion
that Mr. Tangorra would not re-offend. Still, the nature of Mr. Tangorra’s
offence obviously was of considerable concern to the Minister. Yet, the
Minister never actually concluded that Mr. Tangorra would commit an organized
crime offence if he were transferred to Canada. His reasons
do not explain why Mr. Tangorra’s application should be denied.
[32]
Finally,
CSC’s suggestion that Mr. Tangorra was a courier for a criminal organization
was never disclosed to him. He had no opportunity to respond to that
allegation. Yet, his application for a transfer appears largely to have turned
on the fact that he had some unspecified connection to organized crime. The
Minister appears to have based his decision on the following statements in the
summary:
[T]he CSC regional security
division confirms that Mr. Tangorra is linked to organized crime. There is no
evidence to indicate that his role was anything other than that of a courier.
[33]
Presumably,
it was this information that caused the Minister to point out that Mr. Tangorra
had links to organized crime and was acting on behalf of a “group”. There is no
other reference in the record connecting Mr. Tangorra to organized crime. Mr.
Tangorra argues that it was unfair for the Minister to rely on information of
which he had no knowledge and to which he had no opportunity to respond. But it
is also the case that the degree to which the Minister relied on a vague
assertion of which Mr. Tangorra was unaware and whose source is unknown goes to
the reasonableness (i.e. the transparency and intelligibility) of that
decision.
[34]
In
my view, the Minister’s decision must be overturned. In keeping with the case law,
the Minister’s decision must be set aside when it fails to explain why the transfer
should be denied, in particular, where the decision does not include a
conclusion that would justify the denial, such as whether the offender will commit
an organized crime offence after the transfer. A decision should also be
quashed when it is based on information to which the applicant had no opportunity
to respond. Both grounds apply here.
V. Conclusion and Disposition
[35]
Judges
naturally approach an application to review a decision of a Minister of the
Crown with an anxiety to uphold that decision. At the same time, they have an
obligation to ensure that the Minister’s decision accords with the
Constitution, the statutory parameters set down by Parliament, and the principles
of justice found in the prevailing administrative law jurisprudence, especially
the requirements relating to reasonableness, fairness and adequacy of reasons.
[36]
In
this case, the Minister’s decision did not accord with either the statutory
parameters set down by Parliament or the applicable principles of justice. The
decision did not disclose why Mr. Tangorra’s application was denied. Further,
the Minister arrived at his decision without affording Mr. Tangorra an
opportunity to respond to the suggestion that he had been involved in an
organized crime which was the main basis for the Minister’s denial of the
transfer.
[37]
Accordingly,
I find that the Minister’s decision was unreasonable. I must, therefore, allow
this application for judicial review, with costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is allowed, with costs.
“James
W. O’Reilly”
Annex
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International
Transfer of Offenders Act, SC 2004, c 21
Factors — Canadian offenders
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.
Factors — Canadian and foreign offenders
(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.
…
Writing
11. (1) A consent,
a refusal of consent or a withdrawal of consent is to be given in writing.
Reasons
(2) If the Minister does
not consent to a transfer, the Minister shall give reasons.
Criminal Code, RSC, 1985, c C-46
2. In this Act,
“Criminal organization offence” means
(a) an offence under section
467.11, 467.12 or 467.13, or a serious offence committed for the benefit of,
at the direction of, or in association with, a criminal organization, or
(b) a conspiracy or an attempt
to commit, being an accessory after the fact in relation to, or any
counselling in relation to, an offence referred to in paragraph (a);
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Loi
sur le transfèrement international des délinquants, LC 2004, c 21
Facteurs
à prendre en compte : délinquant canadien
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.
Facteurs
à prendre en compte : délinquant canadien ou étranger
(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).
[…]
Documents écrits
11. (1) Le consentement au transfèrement, le refus de
consentement et le retrait de consentement se font par écrit.
Refus du
ministre
(2) Le
ministre est tenu de motiver tout refus de consentement.
Code
criminel, LRC (1985), ch C-46
2. Les définitions qui suivent s’appliquent à la présente
loi.
Infraction
d’organisation criminelle
a)
Soit une infraction prévue aux articles 467.11, 467.12 ou 467.13 ou une
infraction grave commise au profit ou sous la direction d’une organisation
criminelle, ou en association avec elle;
b)
soit le complot ou la tentative en vue de commettre une telle infraction ou le
fait d’en être complice après le fait ou d’en conseiller la perpétration.
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