Date:
20130718
Docket:
T-2198-12
Citation: 2013
FC 798
Toronto, Ontario,
July 18, 2013
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
|
|
RAPHAEL CARRERA (A.KA. RAFFAELE
MILONE)
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF PUBLIC SAFETY
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of a decision of the Minister of Public Safety dated
October 15, 2012, made under the provisions of the International Transfer of
Offenders Act, SC 2004, c 21 as it existed on May 2, 2012 wherein the
Minister did not consent to the Applicant’s request for transfer from a United States prison to Canada. For the reasons that follow I have determined that the application
is allowed and the matter is to be sent back for redetermination forthwith.
[2]
The
Applicant Raphael Carrera (a.k.a. Raffaele Milone) and also known as Ralph
Milone is a citizen of Canada. He has a criminal record in Canada dating back to 1971 respecting a number of offences. In 1985 he was sentenced in Canada to a term of imprisonment of over four years for the possession of narcotics for the
purpose of trafficking. While on day parole he absconded to the United States where he assumed a false name, Carrera, and identity.
[3]
While
in the United States the Applicant worked and established a common law
relationship with a woman in Nevada. He was apprehended in the United States in a sting operation involving a substantial amount of cocaine. He had dealt
with substantial quantities of cocaine on previous occasions as well. The
Applicant was sentenced by a United States Court to imprisonment for thirty
years followed by a five year period of supervised release.
[4]
The
Applicant has served about fifteen years of this term in a United States penitentiary. The present case deals with his sixth request for transfer to Canada to serve the remainder of his term in Canada. I am advised by Counsel that if he were
returned to Canada he would be eligible to apply for parole. The first four
requests were denied by the United States, the fifth was denied by the then
Canadian Minister of Public Safety. This sixth request was denied by a
different Minister of Public Safety. It is this sixth decision that is the
subject of this judicial review.
THE DECISIONS
UNDER REVIEW
[5]
The
Minister’s decisions of October 15, 2012 began as follows:
Given that Mr. Raffaele Milone’s application was
made before the coming into force of recent amendments to the International
Transfer of Offender’s Act (the Act) on May 3, 2012, I am considering Mr.
Milone’s request for transfer under the Act as it existed on May 2, 2012.
The purpose of the Act is to contribute to the
administration of justice which includes public safety and security
considerations. It is also to contribute to the rehabilitation of offenders and
their reintegration into the community by enabling them to serve their
sentences in the country of which they are citizens or nationals.
I have examined the facts and circumstances in this
case in the context of the purpose of the Act and the specific factors
enumerated in section 10 of the Act (set out in the Annex).
The information that was presented to me indicates
that the Mr. Milone is a Canadian citizen serving a sentence of 30 years
imprisonment for the following offences: “Conspiracy to Distribute and
Possession with Intent to Distribute Cocaine,” and “Attempt to Distribute and
Possess with Intent to Distribute Cocaine.”
I have considered the entire record before me,
including the materials submitted by Mr. Milone.
I note the following
facts:
The Minister recited
some nine pages of facts set out in bullet points. At pages three and four the
Minister states his conclusions and reasons for these conclusions:
I have noted that Mr. Milone was residing in the U.S. for approximately 10 years prior to his arrest. He moved to the U.S. to escape being apprehended in Canada. I have considered that Mr. Milone returned to Canada for special occasions and that during these visits he sometimes stayed in Ontario for several
weeks. However, I have also noted that Mr. Milone concealed his Canadian
identity by creating a false identity for himself in the U.S. For many years, Mr. Milone resided and worked in the U.S. under the alias, Raphael
Carrera. I further noted that Mr. Milone has a finacée in the U.S., whom he lived with in Las Vagas, Nevada, that he owned a home in the U.S., and that he was sporadically employed in the U.S. With this information in mind and despite
Mr. Milone’s family ties in Canada, I find that Mr. Milone left or remained
outside Canada with the intention of abandoning Canada as his place of
permanent residence.
I have also considered the seriousness of the
offence for which Mr. Milone was convicted and its harm to society. I note the
substantial sentence that was imposed by the U.S. court which further reflects
the gravity of the offence. I note that Mr. Milone has spent 14 years
incarcerated, with 16 years remaining until the end of his sentence.
I note that Mr. Milone directed his accomplice to
transport large quantities of cocaine across the U.S. Mr. Milone instructed his
accomplice on where and when to deliver the drugs. I further note that Mr.
Milone’s accomplice transported and delivered cocaine to Mr. Milone on at least
four previous occasions. This indicates to me that Mr. Milone’s criminal
activities were well planned and executed and resulted in financial benefit to
the members of the group. In my view, the organized nature of the offence
enhances the seriousness of the crime and, along with his criminal record,
create a significant risk that Mr. Milone will engage in similar activities if
returned to Canada. This factor goes to the public safety of those in Canada, which is foremost in my mind.
While I take into account the progress that Mr.
Milone has made since he has been incarcerated, his participation in a General
Education Diploma and a substance abuse program, and the family ties that he
has maintained in Canada, when these factors are balanced against the evidence
indicating that Mr. Milone abandoned Canada as his place of permanent residence
as well as the seriousness, organized and sophisticated nature of the offence,
the sentence received, and the significant risk that I believe Mr. Milone will
engage in similar activities if transferred to Canada, I am of the view that a
transfer in this case would not contribute to the administration of justice,
including public safety, in Canada.
I therefore do not consent to Mr. Milone’s transfer
request to Canada.
[6]
Counsel
for Mr. Milone argued that the Minister made this decision essentially on two
grounds: the first is based on abandonment of Canada; the second is based on
serious organized crime.
[7]
Counsel
for the Minister argued that there were three grounds: first was based on
abandonment of Canada; second was serious criminality; the third was organized
crime which Counsel argued was either a third and separate ground or a ground
that supplemented the second ground of serious criminality.
THE ISSUES
[8]
The
following issues were presented by one or other of the parties:
i.
What
is the standard of review?
ii.
Were
the Minister’s reasons sufficient in respect of justification, transparency and
intelligibility?
iii.
Was
the Minister’s decision in respect of abandonment of Canada clearly stated and
reasonable?
iv.
Was
the Minister’s decision in respect of serious (organized) criminality clearly
stated and reasonable?
ISSUE #1: What
is the Standard of Review?
[9]
Counsel
for each of the parties stated that the appropriate standard of review is
reasonableness. I agree. As Dawson JA for the Federal Court of Appeal in LeBon
v Canada (Attorney General), 2012 FCA 132 [LeBon] wrote at paragraph
15, the Minister’s decision whether to consent to a transfer is fact-specific
and discretionary in nature, reasonableness is the appropriate standard:
15 In the present case, the Minister’s decision whether
to consent to the transfer to Canada of the Canadian offender is fact-specific
and discretionary in nature. Generally, reasonableness is the standard of
review applicable to such decisions (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 53). Given the nature of the Minister’s
decision, the Judge correctly selected reasonableness as the applicable
standard of review.
ISSUE #2: Were the
Minister’s reasons sufficient in respect of justification, transparency and
intelligibility?
[10]
The
parties are agreed as to the applicable principles. It is appropriate to refer
again to the reasons written by Dawson JA in LeBon. I repeat paragraphs
16 to 19:
16 In Telfer,
this Court explained the nature of review on the reasonableness standard in the
following terms:
25 When reviewing for
unreasonableness, a court must examine the decision-making process (including
the reasons given for the decision), in order to ensure that it contains a
rational “justification” for the decision, and is transparent and intelligible.
In addition, a reviewing court must determine whether the decision itself falls
“within a range of possible, acceptable outcomes which are defensible in
respect of the facts and the law”: Dunsmuir at para. 47.
17 More recently, the Supreme Court has provided
further clarification as to the nature of review on the reasonableness
standard. In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 Justice Abella wrote as follows
for the Court at paragraphs 14 to 16:
14 Read as a whole, I do not see Dunsmuir
as standing for the proposition that the “adequacy” of reasons is a stand-alone
basis for quashing a decision, or as advocating that a reviewing court
undertake two discrete analyses - one for the reasons and a separate one for
the result (Donald J. M. Brown and John M. Evans, Judicial Review of
Administrative Action in Canada (loose-leaf), at ss. 12: 5330 and 12: 5510). It
is a more organic exercise - the reasons must be read together with the outcome
and serve the purpose of showing whether the result falls within a range of
possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir
when it told reviewing courts to look at “the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes” (para. 47).
15 In assessing whether the decision is reasonable
in light of the outcome and the reasons, courts must show “respect for the
decision-making process of adjudicative bodies with regard to both the facts
and the law” (Dunsmuir, at para. 48). This means that courts should not
substitute their own reasons, but they may, if they find it necessary, look to
the record for the purpose of assessing the reasonableness of the outcome.
16 Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A decision-maker is not required to
make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion (Service Employees’ International Union, Local
No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p.
391). In other words, if the reasons allow the reviewing court to understand
why the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes, the Dunsmuir criteria
are met.
18 Therefore,
having regard to the record before the Minister, the question to be answered is
whether the Minister’s reasons allow the reviewing Court to understand why the
Minister made his decision and then to determine whether the Minister’s
conclusion was within the range of acceptable outcomes.
19 Before turning to consider the Minister’s
decision, it is important to acknowledge the correctness of the Attorney
General’s submission that transfers under the Act are a privilege for Canadian
offenders who are incarcerated outside of Canada. There is no right to be
returned to Canada. Equally correct is the submission that the Minister is not
bound to follow the advice of the CSC.
[11]
With
these principles in mind I will turn to the bases stated by the Minister for
his decision.
ISSUE #3: Was the
Minister’s decision in respect of the abandonment of Canada clearly stated and
reasonable?
[12]
The
Minister’s decision respecting abandonment of Canada is contained in the first
of the “decision” paragraphs previously recited. The conclusion reached by the
Minister was that “…Mr. Milone left or remained outside Canada with the intention of abandoning Canada as his place of permanent residence.”
[13]
The
International Transfer of Offenders Act, SC 2004, c 21, section 10(1)(c)
provides as one of the factors that the Minister shall consider “whether the
offender has social or family ties in Canada.” This is not the same as
abandonment.
[14]
The
Minister appears to be of the view that once a party has apparently “abandoned”
Canada at one stage of their life, they can never change their mind or
circumstances may never change such that a person no longer abandons Canada.
[15]
A
Community Assessment prepared by Corrections Canada dated August 21, 2007
concisely captures Mr. Milone’s circumstances:
According to the contact, the subject had a drug
relapse shortly after his day parole release in 1987. In fear of incarceration,
he chose to abscond from the CRF. Several months later, he called his family
members from US to advise that he was ok. According to the contacts, the
subject told his father and siblings that he would come back to Canada to face whatever the consequence his UAL might result. Unfortunately, his plan to
return to Canada was delayed after he became involved in a relationship with a
woman Christina and started a short-lived business venture with Christina’s
father. According to the contacts, the subject’s relationship with Christina
has been over for 7 years now and Christina has since married with another man
many years ago. According to the contacts, the subject has no family or social
ties (except negative or criminal associates) in the United States after his
separation with his ex-girlfriend Christina.
According to the contacts, the subject had been
maintaining regular contact via telephone, post cards and letters with his
father, siblings and two sons throughout the late 1980s and 1990s. He had
always told them that he wanted to return to Canada to live close to his
family. He was also planning to reconcile with his ex-wife Ann on his return to
Canada. According to the contacts, the subject has never given up his plan to
return to Canada. He has submitted four applications for international Transfer
since his incarceration in 1998. In addition, he has written to the Public
Safety Minister to seek support from the Canadian Government.
[16]
The
Corrections Canada Community Assessment dated February 17, 2006 provided the
following overall assessment:
OVERALL ASSESSMENT
Ralph MILONE continues to have strong family support
in Canada. Although they do currently visit the offender in the USA when they can, the drive is lengthy (over 6 hours) and visiting could be better accommodated if
MILONE was transferred to Ontario. Family members have advised that MILONE’S
focus is to return to Canada and that he has no further ties or interests in
remaining in the USA. His ex-common-law wife Christina has since married
another man and his two adult sons live in Ontario. Although it appears as
though MILONE left Canada years ago with the intention of abandoning Canada as the offender’s permanent place of residence (he had also absconded from his
Canadian federal sentence) he has since changed his mind and had been pursuing
an International Transfer for several years. Continued social and family ties
in Canada have indeed been confirmed through completion of this Community
Assessment.
[17]
Mr.
Milone himself wrote in his Request for Transfer dated September 23, 2010:
I have always maintained my citizenship and
allegiance to Canada and made no effort to denounce my citizenship. Corrections
Services Canada completed a community assessment attached – A, which was
included in the 2008 Analysis Report that clearly states that I have strong
family ties in Canada. Although I did work and live in the U.S., I was also living in Canada for certain intervals and took great risks in order to maintain
contact with my children. Despite my fears of detection and incarceration in
Canada, I attended my cousin David and Lisa’s wedding in Toronto in 1997 and
visited my Dad in 1998 to celebrate his 75th birthday, just prior to
my arrest. There are pictures to corroborate these events. I acquired false U.S. identification in order to facilitate a very covert fugitive lifestyle which was
fuelled by my abuse of cocaine and alcohol. When I went on my many journeys
back and forth to Canada, I was in a permanent chemically induced state of
mind. I was a cocaine addict. I am no longer trapped by those demons which
controlled my movements. In a way I can say that I am truly free even though I
am incarcerated. I thank God I am not longer imprisoned by the same mind that
governed my actions.
I am remorseful and ashamed of my actions and will
make amends where I can to the people I have hurt through my actions. Canada is
my homeland where I was born, raised, was married, where my children and
grandsons were born and where my siblings, family and extended family all
reside. We have been living in Canada for five generations, I would never
abandon my country. I have strong support from my family who will ensure that I
will fulfill my future career aspirations and remain drug free.
[18]
The
Minister seemingly ignored the advice of Corrections Canada and gave no weight
to or ignored Mr. Milone’s changed circumstances. So stated by Justice
Mactavish of this Court in Del Vecchio v Canada (Public Safety and Emergency
Preparedness), 2011 FC 1135, at paragraph 53, a Minister’s analysis must be
forward-looking:
53 It
is clear from the wording of paragraph 10(2)(a) of the ITOA that Parliament did
not contemplate a blanket ban on the transfer of individuals convicted of
criminal organization offences. Moreover, the Minister’s analysis must be
forward-looking. Consequently, there must be a meaningful examination of both
the offender’s past involvement with organized crime and the ongoing ties of
the individual to criminal organizations.
[19]
Here
the Minister’s analysis was backward-looking, not forward-looking. It fixed on one
period in the Applicant’s life and not on the present or future. In this
respect the decision was not reasonable.
ISSUE #4: Was the
Minister’s decision in respect of serious (organized) crime clearly stated and
reasonable?
[20]
The
Minister’s reasoning in this respect, whether it is considered as one ground or
two, closely parallel’s that considered in LeBon supra. In that
case the Federal Court of Appeal held that the Minister failed to address all
the grounds before him and in particular failed to explain the basis for his
departure from Corrections Canada’s advice and failed to explain how the
Minister weighed all the relevant factors including those that favoured the
incarcerated person so as to arrive at the conclusion that the relevant factors
in favour of that person were outweighed. I note in this respect that the
Federal Court of Appeal recently held in a further LeBon decision, Canada
v LeBon, 2013 FCA 55 that a revised Minster’s decision failed in this
respect as well.
[21]
In
the present case the information in the Minister’s file includes Mr. Milone’s
Request for Transfer dated September 23, 2012 in which he wrote, in part:
I also acknowledge that I have been associated with
criminal elements in the past, but over many years of incarceration those ties
have been severed. I have had ample opportunity to reflect on my life and have
no desire whatsoever to re-establish any ties with any criminal activity. My
criminal ties existed only in the US, and not in Canada. After 12 years of
imprisonment these ties no longer exist and the potential of me ever getting
involved is negligible. There was no evidence on record demonstrating that I
would, after transfer, commit a criminal organization offence within the
meaning of section 2 of the Criminal Code. Correction Services Canada,
International Transfer of Offenders division, requested a security check be
done on myself which was included in the Analysis Report sent to the Minister
as noted on page 2 and 3 of the attached – B. Robert w. MacLean, Director of
Operations, Regional Headquarters, Ontario conducted the security check in 2007
and 2008 using the Automated Central Intelligence System, operated by Criminal
Intelligence Service of Canada and the provincial bureaus, (ACIIS) and the
Records Management System for the Ontario Provincial Police (RMS NICHE) and
RCMP Intelligence Unit to check their national database. The results were
conclusive. The search did not turn up any relevant information relating to the
international transfer, attached – C. I have never committed a violent offence,
I am not a potential threat to the safety of Canadians or the security of Canada nor is there any reason that I would reoffend.
During my imprisonment and with a clearer mind, I
have had many opportunities to reflect upon the seriousness of my crime and the
damaging impact it has had on my life and my family. There is nothing I can do
to change the choices I made in the past, but I do know for sure that I love my
family so much and would never ever do anything to hurt them again. With clearer
mindset, my awareness of drugs, the harmful effects of illegal drug trafficking
and drug use on our society, especially our children, has come into sight.
There is no safe way to take drugs. I realize the impact my crime has had on
the people of the community and those that I have put in harm’s way. I know
that looking into the future I would do all I can to help avoid crime of any
sort, to ensure my country is a safe place for all citizens to live.
As far as my past behaviour, however serious my crimes
have been, I have spent more than twelve years making amends for it and I
sincerely regret all the grief and hardships I have caused. My ways have
changed in such a positive manner and I am truly sorry for what I have done. I
am planning to use my life experiences and credentials to offer counselling in
order to prevent those at risk from falling into the same situation as myself.
One of my future ambitions is to find employment, where I can help those with
addictions, their families and communities at large. This is evident in a
letter dated July 2nd 2007, written by Kim Burdo, RN, Health System Specialist,
FCI Raybrook on my behalf, to Vitanova Foundations inquiring about future
employment, which was one year prior to my U.S. transfer approval, attached –
D. I have a lot to give back to society and my family given the opportunity to
do so.
[22]
While
undoubtedly self-serving, these remarks indicate that Mr. Milone has quit his
past behaviour, is remorseful, and seeks to pursue a positive lifestyle.
[23]
Most
important is the Report submitted by the Director of the International Transfer
Unit of Corrections Canada dated June 6, 2011 which, among the factors provided
to the Minister for consideration are the following:
A. Subsection 10.(1)(a) of
the ITOA:
Reliable information obtained to date does not
indicate that Mr. Milone’s return to Canada would pose a threat to the security
of Canada.
B.
Subsection
10.(1)(b) of the ITOA:
File information indicates that Mr. Milone was
living in the United States prior to his offence. He absconded to the United States in 1987, while on Day Parole in Canada. Mr. Milone resided and worked in the United
States under the alias, Raphael Carrera. In his sixth application, Mr. Milone explains
that although he worked and lived in the United States, he was also living in Canada for certain periods of time in order to maintain contact with his children, who reside in Toronto, Ontario.
C.
Subsection
10.(1)(c) of the ITOA:
The community assessment completed with his sister
and other members of his family, who all resides in Ontario, attests that he
has social and familial ties in Canada.
D.
Subsection
10.(1)(d) of the ITOA:
The United States or its prison system does not
present a serious threat to the offender’s security or human rights. His
adjustment is reported as positive.
E.
Subsection
10.(2)(a) of the ITOA:
Information obtained to date from the Correctional
Service of Canada’s security and intelligence division, RCMP, as well as
information from other reliable sources, does not indicate that Mr. Milone has
ties to terrorism or a criminal organization, within the meaning of section 2
of the Criminal Code.
F.
Subsection
10.(2)(b) of the ITOA:
Mr. Milone has never been transferred under the
International Transfer of Offenders Act or the Transfer of Offenders Act,
chapter T-15 of the revised Statutes of Canada (1985).
[24]
While
the Minister has discretion as to whether to follow such assessments it is incumbent,
as found in LeBon supra, for the Minister to indicate that he was
aware of such assessments, that he took them into account, and if there were
other factors which outweighed those assessments, what those factors were and
how they outweighed the assessment. Just as in LeBon supra, the Minister
has not done this in this case.
CONCLUSIONS AND
COSTS
[25]
In
conclusion I find that the Minister’s decision is unreasonable and must be
returned for a full and proper assessment of all relevant factors and the
promise of a clear, transparent and intelligible decision. As in LeBon supra
this should be done forthwith.
[26]
The
parties have argued that the successful party may be awarded costs fixed in the
sum of $2500.
JUDGMENT
FOR
THE REASONS PROVIDED:
THIS
COURT ADJUDGES that:
1. The
application is allowed;
2. The
matter is returned for redetermination by the current Minister having regard to
all relevant facts with the provision of a clear, transparent and intelligible
decision, forthwith;
3. The
Applicant Mr. Milone is entitled to costs fixed in the sum of $2500.
“Roger T. Hughes”
Email this Content