Docket: T-357-14
Citation:
2014 FC 695
Vancouver, British Columbia, July 16, 2014
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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MARTIN CHAMBERS
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Applicant
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and
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JOSEPH DAOU, IN HIS CAPACITY AS SENIOR MANAGER OF THE
INTERNATIONAL TRANSFER UNIT OF THE CORRECTIONAL SERVICE OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s. 18.1 of the Federal
Courts Act, RSC, 1985, c F-7 for judicial review of a decision of the Senior
Manager, International Transfers Unit, Correctional Service Canada [ITU], dated
September 17, 2013 [Decision], which found that the Applicant is ineligible for
a transfer under the International Transfer of Offenders Act, SC 2004, c
21 [ITOA].
II.
BACKGROUND
[2]
The Applicant is a Canadian citizen currently
serving a prison sentence in the United States [US] after being convicted of
one count of conspiracy to commit money-laundering and four counts of
money laundering under US federal law. On May 14, 2013, he applied for a transfer
to complete his sentence in Canada under the ITOA, which implements in
Canadian law the Treaty between Canada and the United States of America
on the Execution of Penal Sentences, 2 March 1977, Can TS 1978 No. 12
[Treaty] and the Convention on the Transfer of Sentenced Persons,
Council of Europe, 21 March 1983, ETS 112 [Convention] (to which both Canada
and the US are parties), among other instruments.
[3]
Under the ITOA and the Treaty, the
offender and both states must agree to such a transfer. The US approved the Applicant’s request on September 4, 2013, and it was forwarded to the ITU.
By letter of September 17, 2013, the Senior Manager of that unit, Joseph Daou,
informed the Applicant that he was ineligible for a transfer. After further
submissions from the Applicant’s counsel, Mr. Daou reiterated this position in
letters of October 23, 2013 and December 10, 2013. It is this decision finding
Mr. Daou ineligible for a transfer that is at issue in this proceeding. Had Mr.
Daou been determined to be eligible, it would have remained for the Minister of
Public Safety and Emergency Preparedness [Minister] to decide whether to
approve the transfer or not.
[4]
The Applicant began serving an 188-month
sentence (15 years and 8 months) on August 18, 2003. Counting jail credit
and good conduct time, he says his projected release date in the US is September 7, 2016. However, the parties agree that his maximum sentence for the
equivalent offences under Canadian law would have been 10 years. Since the ITOA
provides that a transferred offender is to serve the lesser of the two
sentences, and given the credits noted above, this means that the Canadian
sentence would have already expired. If the Applicant remains in the US, he will continue to be incarcerated for some time. If he is transferred to Canada, he will be immediately released. The question in this application is whether the
latter scenario is permitted by the ITOA, such that the Applicant should
have been eligible for a transfer and his file should have been forwarded to
the Minister for a decision. The Applicant seeks a declaration that he is
eligible for a transfer under the ITOA, and an order of mandamus to compel
the Respondent to complete the processing of his application and forward it to
the Minister for a decision.
[5]
Concurrently with his application to this Court,
the Applicant also brought a petition before the Supreme Court of British
Columbia seeking an order in the nature of habeas corpus, with
certiorari in aid, and remedies under s. 24(1) of the Canadian Charter of
Rights and Freedoms [Charter]. In reasons issued orally on July 4,
2014, Mr. Justice Silverman of that Court found that the same decision at issue
here was based on an incorrect interpretation of the ITOA and was
unlawful, and that the Applicant’s continued detention, being the result of the
actions or inaction of Canadian authorities, was a violation of his rights
under s. 7 of the Charter: Chambers v Daou, 2014 BCSC 1284 [Chambers
(BCSC)]. While declining on jurisdictional grounds to issue an order in the
nature of mandamus requiring the application to be forwarded to the
Minister for a decision, Mr. Justice Silverman granted an order in the nature
of habeas corpus and, relying on s. 24(1) of the Charter, a
declaration that the Applicant “has been and continues to
be unlawfully detained according to Canadian law, and that his Charter rights
have been breached, all as a result of an erroneous interpretation of the International
Transfer of Offenders Act.” The B.C. Supreme Court anticipated that
as a result of its order “Mr. Daou would then
forward the petitioner’s application in the usual way to the Minister for a
decision to be made” (at para 110).
[6]
The Applicant has chosen to continue with the
current proceeding despite this ruling from the B.C. Supreme Court, issued
one week before the hearing before this Court. As might be expected in
these circumstances, the issue of whether the Court should consider the present
application was raised at the hearing. The Respondent took the position that
the matter is now res judicata and this Court cannot hear and decide
the application.
III.
DECISION UNDER REVIEW
[7]
In his letter of September 17, 2013, Mr. Daou
informed the Applicant that pursuant to Articles 3(1)(c) and (e) of the
Convention and s. 4 of the ITOA, he was not eligible for transfer. Mr. Daou
provided the following explanation:
The offences for which you were convicted and
sentenced to a term of imprisonment of fifteen (15) years eight (8) months…
would constitute an offence in Canada for which the maximum penalty is
imprisonment for ten (10) years contrary to sections 465(1)(c) and 462.31 of
the Criminal Code.
Your sentence of ten (10) years in Canada would have begun on August 18, 2003. You have 431 days jail credit and 418 days good
conduct time; therefore, your warrant expiry date would be August 8, 2011. As
noted in Article 3(1)(c) of the Convention, a sentenced person requesting
transfer must still have at least six months of the sentence left to serve in
order to transfer. As this date has already passed, we cannot transfer your
sentence.
[8]
This position was reiterated in Mr. Daou’s
letter of October 23, 2013. This second letter stated that since the
Applicant’s warrant expiry date would have been August 8, 2011 according to
calculations made under s. 22 of the ITOA, and this date had already passed, “the sentence cannot be administered in Canada.” Mr. Daou also called the Applicant’s attention to s. 13 of the ITOA,
which states that “[t]he enforcement of a Canadian
offender’s sentence is to be continued in accordance with the laws of Canada as
if the offender had been convicted and their sentence imposed by a court in
Canada,” as well as Article 10, section 2 of the Convention, which
states that a sentence “shall not aggravate, by its
nature or duration, the sanction imposed in the sentencing State, nor exceed
the maximum prescribed by the law of the administering State.”
[9]
The third letter, dated December 10, 2013, added
the following:
… Based on the information provided to us by
the United States authorities, the sentences imposed on Mr. Chambers for one
count of “Conspiracy to commit money laundering” and four counts of “Money
laundering” were to be served concurrently. Therefore, Mr. Chambers’
sentence of imprisonment of fifteen (15) years and eight (8) months for all
five counts can only be executed in Canada as a ten (10) year sentence.
[10]
Mr. Daou reiterated that the Applicant was
ineligible for a transfer, and stated that “[u]nfortunately,
exceptions are not granted to the legal rules and regulations surrounding the
transfer of offenders from the United States to Canada.”
IV.
ISSUES
[11]
The substantive issue raised in this application
is whether the Respondent erred in finding that the Applicant was ineligible
for a transfer under the ITOA. The Applicant raises a second issue of whether
the provisions in the Treaty and the Convention stating that only those with at least
six months remaining in their sentence are eligible for a transfer form part of
the law of Canada in the absence of having been expressly implemented in
the ITOA. In my view this is not a separate issue but is simply part of
what must be considered in answering the first question.
[12]
Since this matter was filed with the Court, Mr.
Justice Silverman of the Supreme Court of British Columbia has rendered a
decision on the same facts, involving the same parties, and the same issues
that are now before me. The appeal period for Justice Silverman’s decision has
not yet lapsed, and at this point we do not know how this matter will evolve in
the BC Courts.
[13]
This raises issues of res reducata, issue
estoppel and judicial comity and whether this Court should exercise its
discretion to consider the present application given the B.C. Supreme Court’s recent
decision in a parallel proceeding.
V.
ANALYSIS
[14]
The Applicant’s concern with the B.C. Supreme
Court judgment is that Justice Silverman did not feel he could award mandamus
as ancillary relief to habeas corpus and a Charter breach.
This was an issue that the Applicant placed before Justice Silverman and, if he
feels the issue was not decided correctly, he could conceivably appeal the
decision on that issue, although I realize this may not be any kind of
practical solution to his problems.
[15]
The remedies available under s. 18.1 of the Federal
Courts Act are discretionary. While I must be mindful of the importance of
judicial review in upholding the rule of law, this Court has discretion whether
to undertake judicial review, or whether to grant a remedy: Canadian Pacific
Ltd v Matsqui Indian Band, [1995] 1 S.C.R. 3, [1995] SCJ No 1; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
paras 36-41; MiningWatch Canada v Canada (Fisheries and Oceans),
[2010] 1 S.C.R. 6, 2010 SCC 2 at paras 43-52. In my view this is an appropriate
case for the Court to exercise its discretion not to undertake judicial review,
or to grant the remedy of mandamus requested by the Applicant.
[16]
It is not clear that the Court would be
prevented from doing so by the doctrine of res judicata. Nevertheless,
there are, in my view, important practical reasons why the Court should
exercise its discretion in this manner.
[17]
The doctrine of res judicata was
succinctly summarized by the Supreme Court of Canada in Danyluk v Ainsworth
Technologies Inc, 2001 SCC 44, [2001] 2 S.C.R. 460 as follows:
20 The law has developed a number of
techniques to prevent abuse of the decision-making process. One of the oldest
is the doctrine estoppel per rem judicatem with its roots in Roman law, the
idea that a dispute once judged with finality is not subject to relitigation: Farwell
v. The Queen (1894), 22 S.C.R. 553, at p. 558; Angle v. Minister of
National Revenue, [1975] 2 S.C.R. 248, at pp. 267-68. The bar extends
both to the cause of action thus adjudicated (variously referred to as claim or
cause of action or action estoppel), as well as precluding relitigation of
the constituent issues or material facts necessarily embraced therein (usually
called issue estoppel): G. S. Holmested and G. D. Watson, Ontario Civil
Procedure (loose-leaf), vol. 3 Supp., at 21 s. 17 et seq….
[18]
In my view, cause of action estoppel may not
apply here. It bars claims that “properly belonged” to the prior litigation: Britannia
Airways Ltd. v Royal Bank of Canada, [2005] OJ No 2 at para 13, 5 CPC (6th)
262 (Ont SC), citing Maynard v Maynard, [1951] S.C.R. 346. In this case the
B.C. Supreme Court found that it did not have jurisdiction to grant mandamus.
[19]
Most of the issues that this Court would need to
decide in order to consider the merits of this application have been
determined by the BC Supreme Court – notably, whether the “six months
remaining” requirement forms part of Canadian law, and if so, whether it
applies by its terms to make the Applicant ineligible for a transfer under
the ITOA. In this case, the pre-conditions for the operation of issue
estoppel are met (the same question was decided, the judicial decision was
final, and the parties were the same: see Danlyluk, above, at para 25),
but the doctrine is not to be mechanically applied (Danlyluk,
above, at para 33):
33 The rules governing issue estoppel
should not be mechanically applied. The underlying purpose is to balance the
public interest in the finality of litigation with the public interest in ensuring
that justice is done on the facts of a particular case. (There are corresponding
private interests.) The first step is to determine whether the moving party (in
this case the respondent) has established the preconditions to the operation of
issue estoppel set out by Dickson J. in Angle, supra. If successful, the
court must still determine whether, as a matter of discretion, issue estoppel
ought to be applied: British Columbia (Minister of Forests) v.
Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 (C.A.), at para. 32; Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), at paras. 38-39; Braithwaite v. Nova Scotia Public Service Long Term Disability Plan Trust
Fund (1999), 176 N.S.R. (2d) 173 (C.A.), at para. 56.
[20]
If this Court were to find that issue estoppel
should not apply, and consider the matter afresh on its merits, there would be
a risk of inconsistent findings. In addition, there is a risk of parallel
appeals with overlapping issues proceeding in separate courts of appeal. This
would have negative effects on judicial economy and pose a further risk of
inconsistent results.
[21]
The Applicant is asking the Court to rely upon
the BC Supreme Court’s findings on the merits, but issue the remedial order
that court found it did not have the power to grant. Whether or not it
would be appropriate for this Court to issue such an order without making its
own findings on the merits, such an approach would not alleviate the concern
about possible parallel appeals noted above.
[22]
In affirming that the Federal Court and the
provincial superior courts have concurrent jurisdiction in this area of the
law, the Supreme Court has consistently characterized the matter as a choice of
forums and remedies that is available to the prisoner (see May v Ferndale
Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 at paras 16, 32-33, 44, 66-67 [May];
Mission Institution v Khela, 2014 SCC 24 at paras 44, 56, 72 [Khela]).
For example, in May at 44, the Court said:
44 To sum up therefore, the
jurisprudence of this Court establishes that prisoners may choose to challenge
the legality of a decision affecting their residual liberty either
in a provincial superior court by way of habeas corpus or in the Federal
Court by way of judicial review. As a matter of principle, a
provincial superior court should exercise its jurisdiction when it is requested
to do so. Habeas corpus jurisdiction should not be declined merely
because another alternative remedy exists and would appear as or more
convenient in the eyes of the court. The option belongs to the applicant.
Only in limited circumstances will it be appropriate for a provincial
superior court to decline to exercise its habeas corpus jurisdiction…
[emphasis added]
[23]
Justice Lebel discussed the similarities and
differences between these options in Khela. The differences include
the fact that the remedies available through judicial review are discretionary,
while habeas corpus is not. This was one of the reasons why provincial
superior courts should not decline to exercise their habeas corpus
jurisdiction despite the fact that an effective alternative remedy might be
available through the Federal Court. The choice is left to the prisoner:
37 …[T]here are, from a functional
standpoint, many similarities between a proceeding for habeas corpus
with certiorari in aid and a judicial review proceeding in the Federal
Court. After all, "judicial review", "[i]n its broadest
sense", simply refers to the supervisory role played by the courts to
ensure that executive power is exercised in a manner consistent with the rule
of law (Farbey, Sharpe and Atrill, at pp. 18 and 56). This is also the purpose
of habeas corpus, if distilled to its essence (see generally, Farbey,
Sharpe and Atrill, at pp. 18 and 52-56).
38 Despite the functional similarities
between certiorari applied for in aid of habeas corpus in a provincial
superior court and certiorari applied for on its own under the FCA, however,
there are major remedial and procedural differences between them. These
differences include (a) the remedies available in each forum, (b) the burden of
proof and (c) the non-discretionary nature of habeas corpus.
[…]
41 … [J]udicial review is an inherently
discretionary remedy (C. Ford, "Dogs and Tails: Remedies in
Administrative Law", in C. M. Flood and L. Sossin, eds.,
Administrative Law in Context (2nd ed. 2013), 85, at pp. 107-9). On an
application for judicial review, the court has the authority to determine at
the beginning of the hearing whether the case should proceed (D. J.
Mullan, Administrative Law (2001), at p. 481). In contrast, a writ of habeas
corpus issues as of right if the applicant proves a deprivation of liberty and
raises a legitimate ground upon which to question the legality of the
deprivation. In other words, the matter must proceed to a hearing if the inmate
shows some basis for concluding that the detention is unlawful (May, at
paras. 33 and 71; Farbey, Sharpe and Atrill, at pp. 52-54).
42 Twenty years after the Miller
trilogy, in May, this Court stressed the importance of having superior
courts hear habeas corpus applications. The majority in May
unambiguously upheld the ratio of Miller: "[h]abeas corpus
jurisdiction should not be declined merely because of the existence of an
alternative remedy" (para. 34)…
[24]
Later in the decision, Justice Lebel raised
issues of judicial economy that would arise from parallel proceedings. At issue
was the appellant’s position that prisoners should not be able to
attack the reasonableness of a transfer decision (as a method of demonstrating
its unlawfulness) on a habeas corpus application before a provincial
superior court:
70 Finally, requiring inmates to
challenge the reasonableness of a CSC transfer decision in the Federal Court
could also result in a waste of judicial resources. For example, an inmate
may take issue with both the process and the reasonableness of such a decision.
Were we to accept the appellants' position, it would be possible for the
inmate to first challenge that decision for want of procedural fairness by
applying for habeas corpus with certiorari in aid in a provincial superior
court and then, should that application fail, challenge the reasonableness of
the same decision by seeking certiorari in the Federal Court. This
bifurcation makes little sense given that certiorari in aid is
available, and it would undoubtedly lead to a duplication of proceedings and
have a negative impact on judicial economy.
[emphasis
added]
[25]
By contrast to the writ of habeas corpus,
it is notable that one of the preconditions for issuing an order of mandamus
is that “[n]o other adequate remedy is available to the applicant.” Moreover,
the order sought must be “of some practical value or effect”: Apotex Inc. v Canada (Attorney General), [1994] 1 FC 742, [1993] FCJ No 1098 at para 45.
[26]
The BC Supreme Court has stated its expectation
that the Respondent will act in accordance with its declaration of the
Applicant’s legal rights, and forward the application to the Minister for
a decision according to the normal process. This remedy may well prove to be
effective, such that an order of mandamus from this Court would not be
necessary and would have no practical effect.
[27]
The issue is not academic. Presently, should the
Respondent wish to attack the merits of the BC Supreme Court’s ruling, it need
only file an appeal with the BC Court of Appeal. If this Court were to issue a mandamus
order based on similar findings, the Respondent would face the need to litigate
the same or very similar issues in two different courts of appeal. This would
carry a risk of inconsistent results and expend valuable judicial resources.
[28]
On the other hand, if this Court were to
consider the merits of the application and come to a different conclusion, the
inconsistent results would have a detrimental effect on the reputation of
justice.
[29]
Where no necessity for a mandamus order
has been demonstrated, none of these risks is warranted. As such, this is an
appropriate case to exercise the Court’s discretion not to consider the merits
of the application.
[30]
This is not to say that, if the Respondent were
to decide not to appeal the BC Supreme Court’s ruling and yet fail to act in
accordance with that court’s declaration of the Applicant’s legal rights, no
remedy would be available in this Court. This Court might well be justified in
granting a remedy in those circumstances, as rule of law considerations would
arise. However, that is not the question currently before the Court, and must
be left for determination if and when it arises.
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