Date:
20130131
Docket:
A-39-13
Citation: 2013 FCA 18
Present: STRATAS J.A.
BETWEEN:
MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellant
and
YVES
LEBON
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
The
Minister seeks to stay part of a Federal Court judgment that has been appealed
to this Court: 2012 FC 1500. For the following reasons, the stay will be
granted and the appeal will be expedited.
A. Background
[2]
For
over four years, Mr. LeBon has been in prison in the United States. He is
serving a ten year sentence for possession with intent to distribute cocaine
and improper entry to the United States.
[3]
Soon
after he began serving his sentence, Mr. LeBon requested transfer to a Canadian
prison under the International Transfer of Offenders Act, S.C. 2004, c.
21.
[4]
The
appellant Minister refused the request to transfer. This Court quashed the
Minister’s refusal and returned the matter to the Minister for re-decision: LeBon
v. Canada, 2012 FCA 132, rev’g 2011 FC 1018.
[5]
On
June 22, 2012, the Minister again refused the request to transfer.
[6]
On
December 20, 2012, the Federal Court quashed this refusal. The Federal Court
also issued certain mandatory directions in paragraphs 2 and 3 of its judgment:
•
The
Minister must accept the request to transfer; and
•
By
February 3, 2013, the Minister must confirm to Mr. LeBon that all reasonable
steps have been taken for his prompt transfer to a correctional facility in Canada.
[7]
The
Minister has appealed to this Court.
[8]
In
this motion, the Minister seeks a stay of the Federal Court’s mandatory
directions pending this Court’s determination of the appeal.
B. Analysis
[9]
To
stay the mandatory directions in the Federal Court’s judgment, the Minister must
satisfy the Court that there is a serious issue to be determined, the Minister
will suffer irreparable harm if the stay is denied, and the balance of
convenience favours granting the stay: RJR-MacDonald Inc v. Canada (Attorney
General), [1994] 1 S.C.R. 311 at page 334.
[10]
The threshold for seriousness is “a low one” and “liberal”: RJR-Macdonald, supra at
page 337; 143471 Canada Inc. v. Quebec (Attorney General),
[1994] 2 S.C.R. 339 at page 358, per La Forest J. (dissenting, with
apparent concurrence on this point from the majority). The moving party need
only show that it is “neither vexatious nor
frivolous”: RJR-Macdonald, supra at page 337.
[11]
The Federal Court’s reasons suggest that the Minister’s
re-decision was utterly unsustainable. Further, the Federal Court made some
clear factual findings and did not identify evidence to the contrary. In this
Court, the Minister’s notice of appeal challenges the legality of the mandatory
directions. At this time, it cannot be said this is a frivolous and vexatious
ground. The notice of appeal adds that the mandatory directions were made
despite “factual issues in dispute,” without elaborating further. This lack of
specificity is of concern. Overall, at this time, based on the record filed
before me, I cannot conclude that the Minister’s appeal is frivolous or
vexatious.
[12]
On the issue of irreparable harm, if this Court does not grant the
stay Mr. LeBon will be transferred to a Canadian prison. Once transferred, he
cannot be returned. As a result, the Minister’s appeal will be moot.
[13]
The prospect of a moot appeal will not always result in a finding
of irreparable harm: United States Steel Corporation et al. v. Canada (Attorney General), 2010 FCA 200 at paragraph 17. But here we are dealing with
an Act aimed at important public security purposes. If the Minister prevails in
this appeal – and, as I have already held, at this time this possibility cannot
be ruled out – those important public security purposes will be harmed if a
stay is not granted. There is no remedy for that harm. Therefore, irreparable
harm has been established.
[14]
On the issue of the balance of
convenience, I find that it lies narrowly in the Minister’s favour because of
these public interest considerations. The public interest is “very important” and “weigh[s]
heavily”: 143471 Canada Inc., supra at page 383; Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764 at paragraph 9.
[15]
I acknowledge and place weight on Mr. LeBon’s individual interests
in returning to Canada: among other things, greater proximity to his family,
better relations with his spouse, improvement in his emotional and physical
welfare and that of his spouse, better prospects of rehabilitation and
reintegration, and better treatment for health problems. The granting of a stay
will perpetuate these harms, ongoing for four and a half years, a short while
further.
[16]
I note that while efforts were made to expedite matters in the
previous Federal Court proceedings, none were made in the previous proceedings
concerning this matter in this Court. Further, in this appeal, there is no
evidence of any attempt by Mr. LeBon to prompt the Minister to move quickly
following the Federal Court’s judgment.
[17]
I also observe that if there are actually no “facts in dispute,”
if the Minister’s re-decision was indeed utterly unsustainable as the Federal
Court suggests, if the Minister’s re-decision was indeed made in callous defiance
of this Court’s earlier decision as Mr. LeBon suggests, Mr. LeBon may have
other recourses to attempt to redress the harm done to him.
[18]
In light of the foregoing, the stay order shall be made.
[19]
Under Rule 53, this Court can attach terms to the granting of
relief. Although Mr. LeBon has not asked for this appeal to be expedited, I
shall order that this appeal be expedited in order to minimize any harm caused
to Mr. LeBon’s interests by the stay. In a direction, issued concurrently, this
Court has invited the parties to provide submissions concerning the schedule,
which will culminate in an appeal hearing in late February. A scheduling order
will then issue.
C. Disposition
[20]
Therefore, paragraphs 2 and 3 of the Federal Court’s judgment (the
mandatory directions) are stayed until final judgment of this Court. The appeal
shall proceed on an expedited schedule.
[21]
Mr. LeBon seeks a higher level of costs in his favour. In the
circumstances of this case, costs of this motion shall be in the cause.
"David
Stratas"
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