Docket: T-348-14
Citation:
2015 FC 69
Ottawa, Ontario, January 19, 2015
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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RAPHAEL CARRERA
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(A.K.A. RAFFAELE MILONE)
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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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JUDGMENT AND REASONS
[1]
The applicant, Mr. Carrera, is currently serving
a 30-year sentence in the United States of America. He has repeatedly applied
pursuant to the International Transfer of Offenders Act, SC 2004, c 21
(the ITOA or the “Act”) to return to Canada to serve the remainder of
his sentence in Canada.
[2]
Mr. Carrera now seeks judicial review of the
decision made by the Minister of Public Safety on January 8, 2014 refusing his
application. The decision at issue is the second refusal by the Minister of Mr.
Carrera’s most recent application, following a redetermination of the matter as
ordered by the Federal Court and as affirmed by the Federal Court of Appeal.
Mr. Carrera submits that this latest decision, like the previous decision, is unreasonable
and does not reflect the guidance of the Federal Court of Appeal.
[3]
For the reasons that follow, the application is
allowed.
Background
[4]
Mr. Carrera is a Canadian citizen, with a
criminal record dating back to 1971 for various offences, including theft under
$200, possession of a prohibited weapon, and possession of a narcotic for the
purpose of trafficking. In 1985, he was convicted of possession of narcotics
for the purpose of trafficking and possession of a prohibited weapon and was
sentenced to a term of imprisonment of four years and three months.
[5]
In 1987, while on day parole at a halfway house,
he absconded to the United States, changed his name from Raphael Milone to
Raphael Carrera and began a new life under this assumed identity.
[6]
In August 1998, Mr. Carrera was found guilty of “Conspiracy to Distribute and Possession with Intent to
Distribute Cocaine” and “Attempt to Distribute and
Possess with Intent to Distribute Cocaine”. He was sentenced to 30
years’ imprisonment, which he is currently serving in a low security
penitentiary. According to the sentencing judge, the long sentence was due to “the seriousness of the offence conduct (i.e., the magnitude of
the narcotics trafficking) and the significant criminal history”.
[7]
On September 15, 2010, Mr. Carrera applied for
the sixth time pursuant to the ITOA for a transfer to Canada. His first four applications were not approved by the United States and his fifth application
was refused by the Minister of Public Safety in 2009.
[8]
In his 2010 application, Mr. Carrera states that
he accepts responsibility for his actions and acknowledges the seriousness of
his offences. He also emphasizes that he has maintained strong ties over the
years with his Canadian family members and notes the progress he has made while
incarcerated through programs and work within the
institution, particularly with respect to addressing past substance abuse
problems. His application is supported by letters from friends, family members
and others.
[9]
On October 15, 2012, then-Minister of Public
Safety, Vic Toewes, refused Mr. Carrera’s application based on Mr. Carrera’s
abandonment of Canada pursuant to paragraph 10 (1)(b) of the Act, the
serious, organized and sophisticated nature of his offence, the sentence
received, and the significant risk that he would engage in similar activities
if transferred to Canada.
Carrera #1
[10]
In Carrera v Canada (Minister of Public
Safety), 2013 FC 798, [2013] FCJ No 861 [Carrera #1], Justice Hughes
allowed the application for judicial review, finding that the Minister had
ignored the advice of the Correctional Service of Canada (CSC) and had either
ignored or not given any weight to Mr. Carrera’s changed circumstances.
[11]
Justice Hughes noted that the Minister appeared
to be of the view that once a person abandons Canada, “they
can never change their mind or circumstances may never change such that the
person no longer abandoned Canada” (Carrera #1, para 14).
[12]
Justice Hughes also found that the Minister had
erred in his approach to contrary evidence, particularly from the International
Transfer Unit (“ITU”) of CSC, which indicated that Mr. Carrera did not pose a
threat to the security of Canada, did not have ties to any terrorist or
criminal organizations, and had social and family ties to Canada. Justice Hughes noted:
[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.
Carrera #2
[13]
The Federal Court of Appeal in Carrera v
Canada (Minister of Public Safety), 2013 FCA 277, [2013] FCJ No 1321,
dismissed the appeal by the Minister. The Federal Court of Appeal noted (at
para 6) that “a reading that exalts the abandonment
factor under paragraph 10(1)(b) of the Act above all other section 10
factors is not a reasonable reading of the Act”. The decision must be
made with the statutory purposes “front of mind”.
In addition, in accordance with Divito v Canada (Minister of Public Safety
and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157 [Divito]
at para 49, the Minister must consider the Canadian offender’s right to enter
Canada under section 6 of the Charter.
[14]
The Federal Court of Appeal stated, at para 7,
that, while the Minister could find that the abandonment factor warrants
significant weight, it was still incumbent on the Minister to consider the
other factors and explain why he was reaching a decision departing from the
assessments made by the ITU favouring the transfer. The Court agreed that the
application should be remitted for redetermination, and provided specific
guidance to the Minister:
[9] In order to facilitate the
Minister’s reconsideration, we offer the following guidance in addition to the
comments above:
● The Minister must consider and
weigh all of the factors under section 10, bearing in mind the purposes of the
Act set out in section 3, namely to further “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.” The values expressed in section 6 of the Charter also fall
to be considered. The Minister shall apply the Act as it existed at the time of
Mr. Carrera’s request for transfer.
● Paragraph 10(1)(b) of
the Act directs the Minister to ascertain whether the offender “left or remained outside Canada with the intention of
abandoning Canada as [his] place of permanent residence.” We agree with
counsel for the Minister that this paragraph mandates a backward-looking
inquiry – not a forward-looking inquiry – on the issue of abandonment. However,
even if abandonment is present, the Minister must still engage in the process
of consideration and weighing discussed in the preceding bullet.
The Decision under Review
[15]
The January 8, 2014 decision of the Minister of
Public Safety, Steven Blaney, again refused Mr. Carrera’s request for transfer
to Canada based on the same record as the previous decision.
[16]
The Minister acknowledges the Federal Court of
Appeal’s judgment and its guidance, noting that he has assessed the facts in
the context of the purposes of the Act and the factors enumerated in section
10.
[17]
With respect to the section 10 factors, the
Minister notes that the CSC Executive Summary indicates the existence of
several positive factors in favour of granting the transfer application: Mr.
Carrera does not pose any obvious threat to the security of Canada, has no ties to organized crime, and has social and family ties to Canada. The Minister also
notes the applicant’s acceptance of responsibility and remorse for his actions
and his progress while incarcerated, including the programs and work
undertaken.
[18]
The Minister states that he “paid particular
attention” to the information highlighted by CSC’s ITU and again notes the
positive factors. However, the Minister finds that these considerations are
insufficient to alleviate three concerns: (1) the applicant left or remained
outside Canada with the intention of abandoning Canada as his place of permanent
residence; (2) the seriousness of both the offences committed in the USA and
the applicant’s criminal record in Canada; and, (3) the applicant may have
difficulty obeying parole conditions and may be difficult to manage.
[19]
The Minister explains why his decision differs
from that of the CSC ITU:
The CSC ITU has highlighted data which is
relevant to the enumerated factors contained in the section 10 of the Act. This
is helpful in guiding my decision. However, beyond those enumerated factors, I
may consider others consistent with the purpose of the Act. In the present
case, my consideration of the seriousness of the offence and Mr. Carrera’s
difficulty in obeying parole conditions stems from this residual discretion.
Specifically, the seriousness of Mr. Carrera’s underlying offences, his
criminal record in Canada, and his history of absconding while on day parole
are considerations which suggest that Mr. Carrera is not yet ready to be
reintegrated in Canadian society and that his transfer would not contribute to
his rehabilitation or to the proper administration of justice. This is why my
ultimate conclusion regarding Mr. Carrera’s suitability for transfer may appear
to differ from the factors highlighted to me by the ITU.
[20]
The Minister reiterates the factors supporting a
transfer, but concludes that the positive factors are outweighed by the
seriousness of the offence, the applicant’s difficulty obeying parole
conditions and his abandonment of Canada, which “deserves
particular weight”, and that these are serious reasons to not consent to
the transfer.
[21]
With respect to the applicant’s abandonment of
Canada, the Minister notes that the “purpose of the Act
is not to be a means for those who have abandoned Canada to return to the
country to take advantage of its correctional system. It seems to me this is
why the section 10(1)(b) ‘abandonment
factor’ is included as one that I must consider.”
The Minister again notes that “this factor weighs
strongly toward not consenting to the transfer”.
[22]
The Minister again relies on the same
factors—the seriousness of the offence in the USA, the applicant’s extensive
criminal record and his prior failure to obey parole conditions—to support his
finding that “it is reasonable to conclude that [Mr.
Carrera] would continue to endanger public safety if returned to Canada”.
[23]
The Minister notes that his concern regarding
Mr. Carrera’s prior difficulty in obeying parole conditions also arises from
his observation that Mr. Carrera would be eligible to apply for parole
immediately if returned to Canada. The Minister states that he does not believe
that Mr. Carrera’s transfer corresponds with the purpose of the Act because he
absconded “when it suited him”, lived under an assumed name, now seeks to
return and would be eligible for parole immediately. The Minister refers to Mr.
Carrera’s immediate eligibility for parole at least three times in the
decision.
[24]
The Minister indicates that he has reached his
conclusion in consideration of the Charter section 6 mobility rights
discussion in the recent Supreme Court of Canada case of Divito:
As a Canadian citizen, Mr Carrera has a right
to enter Canada. However, I believe I have reasonably assessed the impact of
this decision on this right, proportionately balancing it given the nature of
the transfer decision and the context within which it is made, both with
respect to the Act and the particular facts relating to Mr Carrera as explained
herein. The Act does not create a right for Canadian citizens to require Canada
to administer their foreign sentence. It does not confer a right on Canadian
citizens to serve foreign sentences in this country.
[25]
In conclusion, the Minister states his opinion
that Mr. Carrera is not a suitable candidate for transfer “at this time” and
invites Mr. Carrera to reapply for transfer at the appropriate time.
The Standard of Review
[26]
There is no dispute that the appropriate
standard of review in this case is reasonableness, given the discretionary
nature of the Minister’s decision. In LeBon v Canada (Attorney General), 2012 FCA 132, 433 NR 310 [LeBon],
the Federal Court of Appeal confirmed that decisions of the Minister relating
to requests for transfer under the ITOA are to be reviewed under the
reasonableness standard since it is “fact-specific and discretionary in nature” (at para 15).
[27]
The role of the Court is, therefore, to consider
the existence of justification, transparency and intelligibility within the
decision-making process, as well as to determine whether the Minister’s
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
[28]
The parties also agree that in these
circumstances, the Minister’s discretion must be exercised with regard to the
offender’s subsection 6(1) Charter rights and the values expressed by
that provision.
[29]
The relevant provisions of the International
Transfer of Offenders Act and the Corrections and Conditional Release
Act, SC 1992, c 20 (the CCRA) are set out in Annex A.
The Issues
[30]
The overall issue is whether the Minister’s
decision to refuse the transfer is reasonable.
[31]
The applicant submits that each of the three key
findings or factors relied on by the Minister—his abandonment of Canada, the
seriousness of his offence and his criminal record, and that he may have
difficulty obeying parole conditions and may be difficult to manage—is
unreasonable as is the Minister’s ultimate conclusion that these factors
outweigh those that support his transfer to Canada.
[32]
The applicant further submits that the ultimate
conclusion is not reasonable because it does not reflect a proportionate
balancing of the subsection 6(1) Charter values with the statutory
objectives, given the nature of the decision and the factual context (Doré v
Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré] at para 57).
The Applicant’s Position
[33]
The applicant agrees that the reference to the “administration of justice” in section 3 of the Act as
it read at the time of the decision includes the promotion of public safety and
submits that the entire provision promotes public safety because the
reintegration and rehabilitation of offenders is in the interests of public
safety.
[34]
The applicant submits that the real issue is
whether the Minister reasonably concluded that the refusal to transfer him
promotes the objectives of the Act. The applicant argues that all three of the
Minister’s findings are unreasonable when assessed against these objectives.
Overall, the refusal to transfer him frustrates the objectives of section 3.
Abandonment of Canada – paragraph 10 (1)(b)
[35]
The applicant submits that the Minister’s
decision and conclusion regarding his abandonment of Canada under paragraph 10
(1)(b) does not follow the guidance of the Federal Court of Appeal in Carrera
#2.
[36]
The applicant submits that although the Federal
Court of Appeal found that the analysis of an offender’s abandonment of Canada
is a backward-looking consideration, when assessed with all relevant
considerations, the overall inquiry must be forward-looking. The Minister must
consider the past events and also what has transpired since in the context of
the offender’s potential rehabilitation and reintegration. The issue is
whether he is a suitable candidate for transfer today.
[37]
The applicant notes that the Federal Court of
Appeal rejected the notion that abandonment of Canada is a “show stopper” and
held that even where there has been abandonment, all the other factors must be
considered and weighed. He submits that the significant weight given to
abandonment is not supported by the evidence. Moreover, it is more than offset
by other factors that clearly support his transfer.
[38]
The applicant argues that the Minister failed to
weigh the abandonment factor in accordance with the purposes of the Act as
stated in section 3 and the treaties it implements. In giving significant
weight to the applicant’s abandonment of Canada, the Minister precluded
consideration of his current suitability for transfer. The applicant submits
that the Minister should have considered: the circumstances of his decision to
leave Canada influenced by his drug abuse; whether the original reasons for
leaving Canada are still operative; whether he maintained meaningful ties while
residing abroad; and, whether he had changed his mind and formed the intention
to return to Canada.
[39]
The applicant also argues that the evidence of
abandonment is equivocal. CSC did not make any finding that he abandoned Canada
but simply summarized the available evidence. He points to the CSC Community
Assessment in 2006 and 2007 which notes that he “appears” to have abandoned
Canada but subsequently changed his mind and that information from his family
indicated that he had an intention to return to Canada prior to his arrest in
the USA. He also points to his application for transfer where he states that
he maintained contact with his family and never intended to abandon Canada.
The seriousness of the offence and the applicant’s
criminal record
[40]
The applicant submits that the Minister’s
finding that he would constitute a danger to public safety—and specifically
that he poses a significant risk and is likely to engage in similar criminal
activities if returned—is unreasonable. The Minister’s decision is contrary to
CSC’s advice and does not sufficiently explain the reasons for the different
conclusion as required by Carrera #2, above, and LeBon, at para
24).
[41]
The applicant acknowledges that there is no
“bright line” with respect to the extent of the explanation required by the
Minister to justify a departure from the CSC’s conclusion, but submits that the
duty to justify the decision is more onerous where the factors in favour of
relief are strong. In this case, given the support of CSC, the Minister’s
reasons for departing from CSC’s support are not sufficient.
Risk of parole breaches and management difficulties
[42]
The applicant submits that the finding that he
would pose a risk of breaching his parole and that he would be difficult to
manage is based on a flawed analysis and is, therefore, unreasonable.
[43]
The applicant again submits that the Minister
failed to explain why he reached a different conclusion than CSC. Although CSC
did not make a specific recommendation or finding, it would not have found him
to be suitable for a transfer if it was of the opinion that he would have
difficulty adhering to parole conditions.
[44]
The applicant notes that to support the
conclusion that he would not adhere to parole conditions, the Minister referred
to the applicant’s fleeing the country and his immediate eligibility to apply
for parole upon his return.
[45]
The applicant submits that in reaching the
conclusion that he would not adhere to parole conditions and would be difficult
to manage, the Minister misapprehended the facts. Although he may be eligible
to apply for parole after his return, there is no certainty that parole
would be granted. There would be an assessment, a Correctional Plan, a risk
assessment and at least 6 months of incarceration before any application for
parole could even be made. The applicant also argues that the Minister ignored
the role of the Parole Board in determining whether the applicant posed a risk
of violating parole conditions or would be difficult to manage.
[46]
The applicant further submits that the Minister
is relying on his past conduct—particularly his absconding, which he cannot change
and which is long in the past—to determine that he would be difficult to manage
now, without the benefit of any current assessment. Events of 30 years ago are
not indicative of the applicant’s current behaviour. His institutional record
in the USA does not disclose any poor conduct. The 2010 CSC assessment confirms
his progress in the institution, his improved supervision history, his sobriety
and his motivation. It also states that his reintegration potential is high if
these developments continue. Therefore, the finding that he would be difficult
to manage is contradicted by the evidence.
[47]
The applicant challenges the Minister’s finding
that the purpose of the Act is not to permit the offender to return in order to
take advantage of Canada’s corrections system. Even if the Canadian system is
more advantageous, the objective of the Act is rehabilitation and reintegration
which benefits society, not only the offender.
[48]
The applicant also submits that the Minister did
not take into account the outstanding Canadian sentence that he would be
required to complete upon his return. The information from CSC indicates that
1020 days of that sentence remain.
Doré/Divito Charter
proportionality analysis
[49]
The applicant argues that the decision to deny
his transfer has a significant adverse impact on the values engaged by
subsection 6 (1) of the Charter. Therefore, for the statutory objectives
to prevail over the Charter value at issue, the statutory objectives
must be as or more significant than the impact on the applicant. He submits
that no proportionate balancing occurred, as required and guided by the Supreme
Court of Canada in Doré and Divito, and the Minister simply
stating that the analysis was done does not make it so.
[50]
The applicant further submits that the Minister’s
final comments that he could reapply is not a reasonable conclusion given that
the determinative factor in refusing his transfer is that he absconded from
Canada and he cannot change the past.
[51]
With respect to the remedy, the applicant argues
that the only reasonable outcome is for the Court to direct that the Minister
consent to his transfer. The applicant predicts that remitting his application
for re-determination will again lead to the same result and, like LeBon,
the decision will be appealed to the Federal Court of Appeal only to be sent
back to the Minister for reconsideration.
The Respondent’s Position
[52]
The respondent submits that the Minister weighed
the competing factors and considered the statutory purpose. The decision to
grant or refuse a transfer is discretionary and the role of the Court on
judicial review is not to reweigh the evidence considered in the exercise of
that discretion. The respondent argues that the applicant is effectively
challenging the relative weight given to the factors and the evidence.
[53]
The respondent highlights the facts which are
not in dispute: in 1987, the applicant absconded to the USA while on day
parole, assumed an alias to avoid detection and remained in the USA for 10
years before he was arrested and convicted for drug offences and sentenced to
30 years in prison.
[54]
The Minister acknowledges the purpose of the Act
and sets out each factor considered and the facts that were relied on with
respect to each. The Minister notes the factors in support of a transfer and
those against and clearly identifies his concerns following the balancing of
the factors for and against.
[55]
The respondent notes that the objectives of the
Act, as section 3 read at the time of the application and decision, do not
specifically refer to public safety. However, the case law has established that
public safety is an aspect of the administration of justice (see Holmes v
Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 112,
383 FTR 185 at para 9). The Minister may also consider other aspects of
the administration of justice which may indicate that a transfer would have
negative implications for the administration of justice.
Abandonment of Canada – paragraph 10 (1)(b)
[56]
The respondent submits that the Minister
reasonably concluded that the applicant had left or remained outside Canada
with the intention of abandoning the country as his permanent residence. The
facts which support the finding of abandonment are clearly set out in the
decision.
[57]
The respondent argues that the Minister’s
decision complies with guidance provided by the Federal Court of Appeal in Carrera
#2; although abandonment of Canada was a significant factor, abandonment is
only one of the three reasons for the Minister’s decision and was considered
along with all the other relevant factors. Abandonment is a backward-looking
inquiry which is then weighed alongside other factors.
[58]
The respondent submits that the Minister
properly focused on the 10-year period following the applicant’s absconding to
the USA. The evidence supports that he intended to remain in the USA and had established himself there: he lived under an alias to avoid detection, had
various jobs, operated a business, had a long-term relationship and owned a
home.
[59]
Moreover, the respondent contends that the
applicant’s occasional social visits to Canada do not negate abandonment. As
stated in Kozarov v Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 866, 333 FTR 27 at para 24, the Act does not require
that an offender sever all ties with Canada before he is deemed to have
abandoned the country. The respondent also notes that the decision is
consistent with CSC’s 2006 Community Assessment, which determined that the
applicant left with the intention of abandoning Canada, although he later
changed his mind. The respondent acknowledges that the applicant has family
ties to Canada, but points out that this factor is a separate consideration.
[60]
The respondent contests the applicant’s position
that the weight the Minister placed on paragraph 10 (1)(b) frustrates
the Act’s purpose and the treaties it implements. The significant weight placed
on abandonment reflects the purpose of the provision, the statutory objectives
and the specific facts including that the applicant admitted that he intended
to leave Canada to avoid prison. The respondent submits that fleeing the
country while on day parole and assuming a new identity were reasonably found
to be “serious undertakings” by the Minister.
[61]
The respondent also disputes the applicant’s
assumption that the rehabilitation and reintegration purposes trump the
administration of justice purpose of section 3. In this case, it was within the
Minister’s discretion, in considering the relevant factors, to attach more
weight to the administration of justice purpose, including the promotion of
public safety (Holmes, above, at para 61).
[62]
The respondent submits that the Minister did not
ignore the applicant’s substance abuse and progress in his correctional
programs, including treatment for addiction. The decision reflects that the
Minister was not convinced that the applicant’s addiction affected the
voluntariness of his actions.
Seriousness of the offence
and criminal record
[63]
The respondent submits that the Minister’s
conclusions regarding the seriousness of the applicant’s offences and his
criminal record are supported by the evidence and are reasonable. The facts
before the Minister were not disputed by the applicant; the applicant is a
career criminal with a long and consistent history of involvement in drug trafficking
in both Canada and the USA.
[64]
The respondent also submits that the Minister’s
conclusions that the applicant posed a risk to public safety and was likely to
commit similar offences were reasonable. In predicting the risk to public
safety, it was reasonable for the Minister to consider Mr. Carrera’s criminal
record in Canada dating back to 1971, and his absconding and remaining in that
status for 10 years before being arrested for other serious drug offences.
[65]
The respondent acknowledges that although the
CSC assessment did not make a specific recommendation, some comments indicate
its view that Mr. Carrera would not commit further offences if returned.
However, the Minister’s decision does not contradict any specific
recommendation. Moreover, the Minister is entitled to disagree with the
assessment and, in accordance with LeBon, the Minister explained why he
reached a different conclusion.
[66]
In Carrera #1, Justice Hughes indicated
that the decision must show that there was an awareness of CSC’s assessment and
how the factors considered by the Minister outweigh that assessment. The
respondent submits that this decision does so; the Minister refers to the CSC
ITU’s assessment and notes that he considered other factors, i.e., the
seriousness of the offences and the applicant’s past difficulty obeying parole
conditions, to reach a different conclusion.
[67]
The respondent disputes the applicant’s
submission that the current decision replicates the earlier decision which this
Court and the Federal Court of Appeal found to be unreasonable. The facts are
the same and some of the considerations remain the same, but the decision is
comprehensive and reflects the direction of the Federal Court of Appeal and the
balancing exercise required by Divito.
Risk of parole breaches and management difficulties
[68]
The respondent submits that the applicant’s
absconding from day parole while serving part of a 4-year sentence in Canada,
the ten years spent at large in the USA, and his failure to turn himself in
provide a basis for the Minister to conclude that the applicant could not be
managed under the Canadian parole regime.
[69]
The respondent disputes the applicant’s argument
that the Minister’s finding usurps the role of the Parole Board or signals that
the Parole Board is not capable of managing offenders or assessing risk.
Section 3 of the Act requires the Minister to consider whether a transfer would
further an offender’s rehabilitation and reintegration in the community. This
involves considering whether an offender is capable of complying with the terms
of structured release into the community. The Minister is entitled to take into
account that the applicant could apply for parole immediately as this is
relevant to whether the applicant poses a risk of future parole breaches.
[70]
The respondent also submits that the applicant’s
immediate eligibility for parole was not the determinative consideration. This
comment was made in the context of the Minister’s consideration of the
paragraph 10(1)(b) factor—that the applicant absconded and abandoned Canada. The Minister noted that “[f]leeing the country and assuming a
new identity are serious undertakings” which led the Minister to
conclude that the applicant would have difficulty adhering to parole conditions
and would be difficult to manage.
[71]
The respondent submits that the significant
factor in the decision is Mr. Carrera’s absconding, which reflects a pattern
regarding his conduct while under the jurisdiction of the Canadian justice
system.
Doré/Divito Charter proportionality analysis
[72]
The respondent notes that Canadian citizens do
not have a right under subsection 6(1) of the Charter to serve a foreign
sentence in Canada and agrees that the Minister’s discretion pursuant to the ITOA
must be exercised in compliance with Charter values (Divito, above,
at paras 45 and 49). The respondent also agrees that the decision should
reflect a proportionate balancing of the Charter protection and
statutory objectives, given the nature of the decision and the factual context
and submits that the decision demonstrates that the Minister conducted the
appropriate balancing.
[73]
The respondent disputes that there is a greater
onus on the Minister to counterbalance the impact of the refusal to transfer
the applicant with the statutory objectives of the Act.
[74]
The Supreme Court of Canada acknowledged in Doré,
at para 56, that Courts must accord some leeway to the legislator in the
balancing and that the proportionality test will be satisfied if the outcome “falls within a range of reasonable alternatives”.
In the present case, the respondent argues that the Minister’s findings and the
overall decision reflect the objectives of the Act and are reasonable.
[75]
With respect to the remedy sought by the
applicant, the respondent submits that the Minister’s decision is responsive to
the Federal Court of Appeal and Federal Court’s decisions in Carrera #1 and
#2, but in the event that the Court finds the decision to be unreasonable,
the Court should remit the application for transfer to the Minister for
re-determination. Directing the outcome is an exceptional remedy which is not
warranted in this case.
Is the Decision Reasonable?
[76]
The Minister relied on the applicant’s
abandonment of Canada plus additional factors—the applicant’s criminal history
and his risk of breaching parole conditions and potential management
difficulties—in deciding to refuse the applicant’s transfer to Canada. The
Minister focused on the applicant’s abandonment of Canada and his criminal
history, past conduct which cannot be changed, and failed to consider all the evidence
regarding the applicant’s conduct and circumstances including that which has
changed or may change. In particular, the Minister either failed to consider
all of the evidence or misapprehended the evidence with respect to the
applicant’s parole eligibility and the outstanding sentence the applicant would
be required to complete which the Minister relied on in concluding that the
applicant posed a risk to public safety and a risk of not obeying parole
conditions and posing management difficulties should he be returned to Canada.
The Minister’s finding that the applicant abandoned Canada (paragraph 10 (1)(b)) is reasonable
[77]
The Minister did not err in concluding that the
applicant abandoned Canada. As is evident from the record, the applicant fled
Canada to avoid his sentence and he lived under an alias to facilitate his new
life in the USA with new jobs, business ventures, a long-term relationship and
a home. Despite his short clandestine visits to his Canadian family, there is
no indication that he would have left his American life behind or returned to
Canada had he not been arrested and imprisoned.
[78]
The issue is whether other factors could
possibly balance or outweigh the finding that the applicant abandoned Canada.
If they cannot, then abandonment is the “show stopper” the Federal Court of
Appeal cautioned against in Carrera #2.
Abandonment of Canada remains the “show stopper”
[79]
The Minister’s emphasis on the backward-looking
paragraph 10 (1)(b) and his assessment of public risk and future
criminality which also was guided by past events make it almost inevitable that
Mr. Carrera will never be granted a transfer. Although the Minister comments
that “Mr. Carrera is not yet ready to be reintegrated
into Canadian society”, it appears that he could never be ready. His
criminal record and history and his abandonment of Canada are facts that the
Minister has determined militate overwhelmingly against a transfer. In my view,
this predetermines the outcome of any future applications and is contrary to
the purpose of the Act.
[80]
The Minister’s decision focuses on past events
that will remain forever unchangeable; the applicant’s abandonment and his
criminal history. Based on the Minister’s analysis, these factors cannot be
outweighed by the positive factors. The positive factors will not likely get
any better than they are now: Mr. Carrera has a good record as an inmate in the
USA jail; he has taken a wide range of programs for his substance abuse and
work related programs; he has strong family support in Canada; the CSC
assessment did not raise any concerns about a transfer; and, the USA has agreed
to his transfer, so there is no concern regarding lack of respect for that
sentence.
[81]
Despite the Minister’s lengthy decision and
articulation of additional concerns and the reasons provided for reaching his
decision, the outcome is that abandonment of Canada remains the “show stopper”.
[82]
In Carrera #2, the Federal Court of
Appeal made it clear that while significant weight can be placed on abandonment
which involves a backward inquiry, because the past cannot be changed, all the
other section 10 factors must be considered. In Carrera # 2, the
Minister relied on only the factors enumerated in section 10 and the Federal
Court of Appeal, therefore, referred to the section 10 factors. However, the
Federal Court of Appeal’s guidance extends to the other relevant factors
considered by the Minister that are not set specifically set out in section 10.
If it is impossible for an offender to ever overcome the abandonment factor,
despite the consideration of the relevant section 10 factors and other relevant
factors, abandonment remains a “show stopper”, contrary to Carrera # 2.
The seriousness of the offences and his criminal record
cannot be changed
[83]
The CSC assessment does not include any comments
regarding the likelihood of the applicant to commit similar offences if
returned to Canada nor does it make a specific recommendation to refuse the
transfer of the applicant. The Minister’s decision acknowledges the CSC
assessment and clearly indicates that the Minister has residual concerns.
Contrary to the applicant’s submission, it cannot be said that the Minister did
not sufficiently explain why he reached a different conclusion. The Minister
clearly indicated that he disagreed due to the seriousness of the applicant’s
offence, his criminal history in Canada and his absconding—again, all factors
that the applicant cannot change.
The other applicable section 10 factors could support the
transfer
[84]
In the present case, with the exception of the
applicant’s abandonment of Canada, all the other applicable section 10 factors
were positive. The Minister acknowledged that the applicant changed his mind
regarding his abandonment of Canada, has strong family ties, no longer has
criminal links in Canada and has made good progress in prison with respect to
his addictions and other programs after many years of institutionalization.
There is nothing more the applicant could do to ensure that the positives
outweigh the negatives. Although the Minister states that the applicant’s
progress “will continue if he continues to serve”
his sentence, it is not evident how this would result in a different outcome
given that the Minister places more significant weight on unchangeable negative
factors.
Risk of parole breaches and “Management Difficulties” are
based on a failure to consider all the relevant evidence
[85]
The Minister has the discretion to grant or
refuse the transfer and may consider relevant factors beyond those set out in
section 10. The Court’s role on judicial review is not to reweigh or rebalance
the factors; however, the Minister’s findings regarding the applicant’s risk of
not obeying parole conditions and of being difficult to manage are based on a
failure to consider all the relevant evidence or a misapprehension of that
evidence which would have a bearing on the findings and on the overall weighing
of all the factors considered. In particular, the Minister failed to consider:
that eligibility for parole does not mean that parole will be granted; that the
Parole Board would conduct a full assessment of the relevant factors and be
guided by the paramount consideration of public safety; and, that the applicant
will be required to serve all or part of his outstanding Canadian sentence. The
Minister’s conclusion that the applicant poses a risk to public safety and of
breaching parole conditions and would be difficult to manage could have been
different had the Minister considered all of the evidence.
[86]
The Minister’s concern about Mr. Carrera’s
difficulty obeying parole conditions was based on the finding that he ran away
from “Canadian justice” while on day parole and on the Minister’s repeated
observation that Mr. Carrera will be eligible to apply for parole immediately
if returned to Canada.
[87]
The Minister is entitled to consider that Mr.
Carrera would be eligible for parole, but the Minister must fully consider what
parole eligibility entails, when it would arise, the principles of the CCRA
and the role of the Parole Board. The reality is that Mr. Carrera would not be immediately
eligible for parole. Once he is eligible, there is no guarantee that he will be
granted parole. The Parole Board would consider all the same conduct the
Minister is concerned about in assessing whether and on what conditions Mr.
Carrera should be granted parole. Mr. Carrera could continue to serve his
sentence in custody if the Parole Board determines that this is in the
interests of public safety.
[88]
Moreover, he would be required to serve at least
part of his outstanding Canadian sentence.
[89]
The CSC indicated that 1060 days remain to be
served (almost 3 years) on this sentence and that it would be adjusted. While
it is not clear whether all or part of that sentence would be required to be
served, this would have a significant impact on the applicant’s eligibility for
parole. The Minister’s emphasis on Mr. Carrera’s immediate eligibility for
parole stemmed from the conversion of the USA sentence of 30 years, of which he
has now served 16 years, and the calculations that would occur upon transfer,
but did not reflect the outstanding Canadian sentence. The inclusion of the
remaining Canadian sentence would affect the Minister’s conclusion that the
applicant would be immediately eligible for parole and that this eligibility
poses a risk to public safety and a risk of parole breaches and management
difficulties.
[90]
The CCRA provides in section 100 that the
purpose of conditional release is to contribute to a just, peaceful and safe
society by making decisions regarding when and how offenders are released that will
best facilitate their rehabilitation and reintegration. The more recent
addition of section 100.1 clarifies that the paramount consideration in all
determinations with respect to release is the protection of society.
[91]
Although the risk the applicant poses to the
administration of justice, which includes public safety, permits the Minister
to consider a wide range of factors, including eligibility for parole, the
Minister does not explain why or how this would negatively affect public
safety.
[92]
While the Minister has not usurped the role of
the Parole Board, the Minister appears to have not taken into account the
important role it would play in the event that the applicant applied for
parole. The Parole Board is required to consider a wide range of facts and
factors when determining whether conditional release should be granted and on
what conditions, including the nature and gravity of the offence, the degree of
responsibility of the offender, information from the trial or sentencing
process, information from victims and other components of the criminal justice
system and assessments provided by correctional authorities. The decision of
the Parole Board must be consistent with the protection of society and the
Board is guided by the paramount consideration of public safety.
[93]
The respondent’s submission that the Minister
focused primarily on the abandonment factor and did not place much emphasis on
the applicant’s immediate eligibility for parole is not borne out by the
decision. The Minister mentions that the applicant would be immediately
eligible for parole at least three times. Clearly, the Minister placed
significant weight on his misunderstanding that the applicant would be
immediately eligible.
[94]
Moreover, the respondent’s argument that
abandonment was the significant factor is problematic because that cannot be
changed and the Federal Court of Appeal made it clear that all the other
factors must also be considered.
[95]
More generally, the Minister does not appear to
have considered whether the Canadian corrections system could provide a better
alternative for the applicant’s reintegration and rehabilitation than remaining
incarcerated in the USA until the conclusion of his sentence and then returning
to Canada, perhaps without any preparation for reintegration and without
further programs for rehabilitation.
[96]
The Minister also emphasized that the applicant
would receive an advantage in transferring to Canadian custody: his immediate
eligibility to apply for parole. The Minister’s observation that the applicant
seeks to gain an advantage by applying for a transfer is at odds with the
overall purpose of the ITOA which is to contribute to the administration
of justice and the rehabilitation of offenders and their reintegration into the
community by enabling them to serve their sentence in their home
country. Many offenders will gain an advantage if returned to serve the
remainder of their sentences in Canada because the Canadian correctional system
has much to commend it in terms of balancing the primary objective of protecting
society with the promotion of offenders’ rehabilitation and reintegration into
society. If the advantage of being eligible for parole in Canada earlier than
would be the case in the foreign jurisdiction is a mark against the applicant,
it would be a mark against many offenders seeking transfer.
[97]
The Minister’s conclusion is not reasonable
because the analysis of the applicant’s risk to public safety and risk of not
obeying parole conditions and management difficulties failed to consider all of
the evidence or misapprehended the evidence regarding the applicant’s
outstanding sentence and his parole eligibility, which would not be immediate.
Doré/Divito Charter proportionality analysis
[98]
The Charter value at issue is the
offender’s right to return to Canada upon release and the possibility of
returning to Canada earlier, limited by the provisions of the ITOA and
the requirement for both the foreign jurisdiction to consent and the Minister
to consent.
[99]
Although the applicant disputes that the
Minister conducted a proportionate balancing of the Charter protection
and statutory objectives as guided by the Supreme Court of Canada, it is not
possible to conclude that this balancing was not done. The Court has
established the principles and the steps of the required analysis but the
application of the principles will vary depending on the facts and may require
some adaptation, particularly where the balancing involves Charter
values as opposed to Charter rights.
[100] In Divito, the Supreme Court of Canada noted at para 45 that,
“although the ITOA contemplates a mechanism by which
a citizen may return to Canada in the limited context of continuing
incarceration for the purpose of serving their foreign sentence, s. 6(1) does
not confer a right on Canadian citizens to serve their foreign sentences in
Canada”.
[101] The Court noted, at para 48, that although Canadians have a right to
enter Canada, Canadians who are incarcerated may only return pursuant to the ITOA.
The Court clarified that the ITOA does not create a constitutionally
protected right to enter Canada even when the foreign jurisdiction consents,
nor does it create an obligation on Canada to permit the offender to return to
serve their sentence. The Court added, at para 49, that once the foreign
jurisdiction consents to the transfer, the discretion of the Minister is
engaged and must be exercised reasonably and in compliance with relevant Charter values. The Court noted:
As this Court explained in Doré, “[o]n
judicial review, the question becomes whether, in assessing the impact of the
relevant Charter protection and given the nature of the decision and the
statutory and factual contexts, the decision reflects a proportionate balancing
of the Charter protections at play” (para 57).
[102] In Doré, at paras 55-58, the Supreme Court of Canada
explained how to conduct the balancing exercise. First, the decision-maker
should consider the statutory objectives. Second, the decision-maker should ask
how the Charter value at issue will best be protected in view of the
statutory objectives. This requires the decision-maker to balance the severity
of the interference of the Charter protection with the statutory
objectives. Proportionality will be satisfied if the measure “falls within a range of reasonable alternatives”.
Overall, “the question becomes whether, in assessing the
impact of the relevant Charter protection and given the nature of the decision
and the statutory and factual contexts, the decision reflects a proportionate
balancing of the Charter protections at play”.
[103] The Court added that deference is owed to administrative and
legislative bodies in balancing Charter values against broader
objectives. The ultimate consideration is whether in exercising its statutory
discretion, the decision-maker has properly balanced the relevant Charter value
with the statutory objectives. If so, the decision will be found to be
reasonable.
[104] In the present case, the statutory objectives include contributing to the administration of justice, of which public
safety is an element, and the rehabilitation and reintegration of offenders by
enabling them to serve their sentences in their home country. These objectives
may at times compete with each other, as in the present case.
[105] The consideration of how the Charter value at issue will best
be protected in view of the statutory objectives could lead to allowing the
transfer if the statutory objectives of rehabilitation and reintegration are
given more weight and alternatively, could lead to refusing the transfer if the
statutory objectives of public safety are given more weight.
[106] In the present case, the decision is not unreasonable due to a
failure to balance the Charter value at stake with the statutory
objectives. Rather, the decision is unreasonable because the Minister has
placed almost insurmountable weight on the abandonment factor, knowing that
this cannot be changed. Moreover, the Minister did not consider all the facts
regarding the applicant’s possible eligibility for parole and the requirement
for the applicant to serve all or part of his outstanding Canadian sentence.
The Minister relied on a mistaken view that the applicant would be immediately
eligible for parole, which formed the basis for the finding that the applicant
poses a risk to public safety, could not be managed on parole and would pose
management difficulties.
[107] Although I have found that the decision is not reasonable and the
application for transfer must again be reconsidered, I do not agree with the
applicant’s position that this is an appropriate case to direct that the
Minister consent to the transfer.
[108] The current decision is not a replica of the earlier decision.
Unlike LeBon, this is not a situation where “although
the second decision is longer, it is essentially a rewording of the Minister's
first decision” (para 13). The Minister identified additional concerns
not raised in the previous refusal decision. As noted above, some of these
concerns are based on misapprehension of the evidence or failure to consider
all of the evidence regarding the applicant’s parole eligibility and his
outstanding Canadian sentence. The Minister should have the opportunity to
again consider the relevant factors based on all the evidence, the principles
and provisions of the CCRA regarding conditional release and the impact
of the applicant’s outstanding Canadian sentence.
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