Docket:
A-266-13
Citation:
2013 FCA 277
CORAM:
EVANS
J.A.
STRATAS
J.A.
WEBB
J.A.
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BETWEEN:
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THE MINISTER OF PUBLIC SAFETY
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Appellant
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and
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RAPHAEL CARRERA
(A.K.A. RAFFAELE MILONE)
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the
Bench at Toronto, Ontario, on December 2, 2013).
STRATAS J.A.
[1]
On July 18, 2013, the Federal Court set aside
the Minister’s refusal of Mr. Carrera’s request to be transferred from a United
States prison to Canada: 2013 FC 798. Mr. Carrera requested transfer under the International
Transfers of Offenders Act, S.C. 2004, c. 21 (as it existed at the time of
the request).
[2]
The Federal Court found that the Minister’s
decision was unreasonable. In the Federal Court’s view, the record before the
Minister required him to give a better explanation why Mr. Carrera’s request
for transfer should be rejected. As well, the Federal Court found that the
Minister applied unreasonably the factors the Act requires him to consider.
[3]
In this appeal from the Federal Court’s judgment
on the application for judicial review, this Court must determine whether the
Federal Court selected the appropriate standard of review and applied it
correctly.
[4]
The parties agree that the Federal Court
correctly selected reasonableness as the standard of review. They disagree on
whether the Federal Court applied that standard correctly.
[5]
In this Court, the Minister makes one
submission. The Minister reasonably found that Mr. Carrera left Canada “with the intention of abandoning Canada as [his] place of permanent residence” under
paragraph 10(1)(b) of the Act and that alone is sufficient reason for
the Minister to refuse to grant the transfer. In other words, according to the
Minister, abandonment is a “show stopper” under the Act.
[6]
In our view, the appeal must be dismissed with
costs. In our view, 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. Section 10, literally read, requires the
Minister to consider all of the enumerated factors. Section 10 does not attach
primacy to any one factor. Further, any decision must be made with the
statutory purposes under section 3 front of mind. Finally, the Minister must
also consider the Canadian offender’s right to enter Canada under section 6 of
the Charter: Divito v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 47 at paragraph 49.
[7]
It is true that in particular cases the Minister
may find that the paragraph 10(1)(b) factor deserves significant weight.
Had that been the Minister’s view in this case, we would nevertheless find that
it was incumbent on the Minister to consider the other section 10 factors and
explain why he was reaching a decision different from the assessments made by
the Director of the International Transfer Unit of Corrections Canada that
largely favoured the transfer: LeBon v. Canada (Attorney General), 2012
FCA 132 at paragraph 23; Reasons of the Federal Court, at paragraph 24. The
Minister’s decision, when viewed against the record including the Director’s
assessments, must be intelligible, transparent and justified: subsection 11(2)
of the Act; Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 47.
[8]
Therefore, we agree with the Federal Court that
this matter must be remitted to the Minister for redetermination forthwith.
[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.
[10]
For the foregoing reasons, we shall dismiss the
Minister’s appeal with costs. The parties have agreed that we should fix costs
of the appeal in the amount of $2,500.
"David Stratas"
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