Date:
20120427
Docket: A-351-11
Citation: 2012 FCA 132
CORAM: LÉTOURNEAU
J.A.
SHARLOW J.A.
DAWSON J.A.
BETWEEN:
YVES LEBON
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1]
The
Federal Court dismissed Mr. LeBon’s application for judicial review of the
decision of the Minister of Public Safety and Emergency Preparedness
(Minister), which denied Mr. LeBon’s request for a transfer to Canada
under section 7 of the International Transfer of Offenders Act, S.C.
2004, c. 21 (Act) (2011 FC 1018, [2011] F.C.J. No. 1261). The Federal Court
Judge applied the standard of review of reasonableness to the Minister’s
decision, and concluded that the decision was “defensible in respect of the
facts and law. [The Minister’s] reasons are complete, intelligible and
sufficient to allow the Applicant to know that all of the factors set out in
section 10 of the [Act] were fairly considered” (reasons, paragraph 47).
[2]
This
is an appeal from the decision of the Federal Court. Despite the articulate and
forceful submissions of counsel for the Attorney General, for the following
reasons I have concluded that the appeal should be allowed.
The Issue on Appeal
[3]
While
the appellant asserts a number of errors on the part of the Judge, in my view
the issue to be determined is whether the Judge erred by finding that the
Minister’s decision was reasonable.
The Facts
[4]
Mr.
LeBon, a Canadian citizen, entered the United States near Champlain, New York by car on
August 17, 2007. He advised the American authorities that he was entering the
United States for the purpose of meeting family members in Maine. This was
untrue. On August 22, 2007, Mr. LeBon was stopped by an Illinois State
Trooper for a minor traffic violation. When asked, Mr. LeBon agreed to
allow the officer to search his car. The officer found 119 packages, each
containing 1 kilogram of cocaine.
[5]
Mr.
LeBon was charged with possession with intent to distribute cocaine and
improper entry into the United States by an alien. He pled
guilty to the charges and was sentenced to 10 years imprisonment, to be
followed by 5 years supervised release. Mr. LeBon is currently incarcerated in
a low security correctional institution in Allenwood, Pennsylvania.
[6]
On
November 25, 2008, Mr. LeBon requested that he be transferred to Canada. American
authorities approved his request on March 6, 2009. On August 16, 2010, the
Minister refused to consent to the transfer.
Legislative Framework
[7]
The
Act allows Canadian citizens to serve sentences imposed by foreign courts in
Canadian institutions. The purpose of the Act is set out in section 3:
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The
purpose of this Act is to contribute to 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.
|
La
présente loi a pour objet de faciliter l'administration de la justice et la
réadaptation et la réinsertion sociale des délinquants en permettant à
ceux-ci de purger leur peine dans le pays dont ils sont citoyens ou
nationaux.
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[8]
The
offender, the foreign state and the Minister are each required to consent to
any transfer (subsection 8(1)).
[9]
At
the time the Minister made his decision, the Act required him to consider the
factors enumerated in subsections 10(1) and (2), which are as follows:
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10. (1) In
determining whether to consent to the transfer of a Canadian offender, the
Minister shall consider the following factors:
(a) whether
the offender’s return to Canada would constitute a threat to the security of Canada;
(b) whether
the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent
residence;
(c) whether
the offender has social or family ties in Canada; and
(d) whether
the foreign entity or its prison system presents a serious threat to the
offender’s security or human rights.
(2) In
determining whether to consent to the transfer of a Canadian or foreign
offender, the Minister shall consider the following factors:
(a) whether,
in the Minister’s opinion, the offender will, after the transfer, commit a
terrorism offence or criminal organization offence within the meaning of
section 2 of the Criminal Code; and
(b) whether
the offender was previously transferred under this Act or the Transfer of
Offenders Act, chapter T-15 of the Revised Statutes of Canada, 1985.
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10. (1) Le
ministre tient compte des facteurs ci-après pour décider s’il consent au
transfèrement du délinquant canadien :
a) le retour au Canada
du délinquant peut constituer une menace pour la sécurité du Canada;
b) le délinquant a
quitté le Canada ou est demeuré à l’étranger avec l’intention de ne plus considérer
le Canada comme le lieu de sa résidence permanente;
c) le délinquant a des
liens sociaux ou familiaux au Canada;
d) l’entité étrangère ou
son système carcéral constitue une menace sérieuse pour la sécurité du
délinquant ou ses droits de la personne.
(2) Il
tient compte des facteurs ci-après pour décider s’il consent au transfèrement
du délinquant canadien ou étranger :
a) à son avis, le
délinquant commettra, après son transfèrement, une infraction de terrorisme
ou une infraction d’organisation criminelle, au sens de l'article 2 du Code
criminel;
b) le délinquant a déjà
été transféré en vertu de la présente loi ou de la Loi sur le
transfèrement des délinquants, chapitre T-15 des Lois révisées du Canada
(1985).
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[10]
The
Minister is obliged to give reasons when he does not consent to a transfer
(subsection 11(2)).
The Information before
the Minister
[11]
The
Minister received a short memorandum relating to Mr. LeBon’s request. Attached
to the memorandum were an executive summary prepared by the Correctional
Service of Canada (CSC) and supporting documentation, including Mr. LeBon’s
application for transfer.
[12]
Information
provided to the Minister by the CSC included:
i.
Sources,
including Canadian Security Intelligence Service (CSIS), had provided
information that “does not lead one to believe that Mr. LeBon’s return to Canada would pose a
threat to the security of Canada”.
ii.
Mr.
LeBon had not indicated that he intended to abandon Canada as his place
of residence. He was in the United States for the purpose of committing
the offence.
iii.
Mr.
LeBon has supportive family ties in Canada. Both his wife and
adult son were willing to offer support to him and on release he would reside
with his wife.
iv.
Neither
the United
States
nor its prison system presented a serious threat to Mr. LeBon’s security
or human rights. He was currently employed in the institution’s dining room and
his adjustment was reported to be positive.
v.
Sources,
including CSIS, had provided information that “does not lead one to believe
that [Mr. LeBon] would, after the transfer, commit an act of terrorism or
organized crime, within the meaning of section 2 of the Criminal Code”.
vi.
Mr.
LeBon had never been transferred under the Act.
vii.
Mr.
LeBon had no criminal record in Canada and no outstanding charges in the United
States.
viii.
With
respect to the likelihood of Mr. LeBon re-offending, the CSC wrote:
The following statement is based on the
results or conclusion based on the information known of the offender and a
synthesis of information about his offence and conviction.
Mr. LeBon is presently incarcerated in a
Minimum security facility. He has demonstrated a pattern of satisfactory
institutional adjustment with no or little intervention required and has not
incurred any disciplinary charges. He has no criminal record and no outstanding
convictions. He has no history of violence or sexual offending.
Mr. LeBon scored +21 on the Revised
Statistical Information on Recidivism Scale (SIR-R1). This suggests that 4 out
of 5 offenders will not commit an indictable offence after release.
The Minister’s Decision
[13]
The
Minister’s decision was brief, and was as follows:
The purposes of the International
Transfer of Offenders Act (the Act) are to contribute to 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. These purposes serve to enhance public
safety in Canada. For each application for
transfer, I examine the unique facts and circumstances as presented to me in
the context of the purposes of the Act and the specific factors enumerated in
section 10.
The applicant, Yves LeBon, is
a Canadian citizen serving a sentence of imprisonment of 10 years in the United
States (U.S.) for the following offences: possession with intent to distribute
cocaine; and, improper entry by an alien. On August 17, 2007, the offender
entered the U.S. stating that he was on his
way to visit with family in Maine. On August 22, 2007, during a
routine traffic stop, an Illinois State Trooper asked Mr. LeBon if he could
search his vehicle. The police officer discovered 119 packages in the trunk,
each containing one kilogram of cocaine.
The Act requires that I
consider whether, in my opinion, the offender will, after the transfer, commit
a criminal organization offence within the meaning of section 2 of the Criminal
Code. In considering this factor, I note that the nature of the criminal
activity suggests that other accomplices were involved who were not apprehended
and is indicative of a serious criminal organization activity. I also note that
the applicant did not provide a statement to the police after his arrest and it
appears from the file that the applicant did not cooperate with the police in
identifying other participants in the crime. Furthermore, the offence involved
a large quantity of cocaine, which is destructive to society. The applicant was
involved in the commission of a serious offence involving a significant
quantity of drugs that, if successfully committed, would likely result in the
receipt of a material or financial benefit by the group he assisted.
The Act also requires that I
consider whether the offender has social or family ties in Canada. I recognize the family ties
of the applicant in Canada, including the fact that his
wife and son remain supportive.
Having considered the unique
facts and circumstances of this application and the factors enumerated in
section 10, I do not believe that a transfer would achieve the purposes of the
Act.
The Standard of Review
[14]
On
an appeal from a decision of the Federal Court disposing of an application for
judicial review, this Court is required to determine whether the Federal Court
identified the appropriate standard of review and applied it correctly (Telfer
v. Canada (Revenue Agency), 2009 FCA 23, 386 N.R. 212 at paragraph 18). If
the Federal Court selected and applied the wrong standard, this Court then
proceeds to apply the correct standard of review. If the correct standard was
applied by the Federal Court, this Court then ensures that it was applied
properly and, where necessary, remedies errors which were made.
[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.
Application of the
Standard of Review
[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.
[20]
Turning
now to the Minister’s decision, read fairly in light of the evidentiary record
before him, it is apparent that the Minister disagreed with the advice provided
by the CSC that Mr. LeBon was not likely to commit an act of organized crime.
In the Minister’s view, the likelihood that Mr. LeBon would commit an act
of organized crime outweighed the positive effect of Mr. LeBon’s supportive
family ties so that the transfer would not achieve the purposes of the Act.
[21]
However,
what the reasons leave unanswered are:
i.
On
what basis did the Minister depart from the CSC’s advice?
ii.
How
did the Minister assess the relevant factors so as to conclude that the factors
which did not favor Mr. LeBon’s return outweighed those which favored his
return?
[22]
Dealing
with the first unanswered question, in my view there is no bright line test
which determines what level of explanation is required when the Minister disagrees
with advice he has received. Each case will depend upon the record before the
Minister. In some cases the record may make it apparent why the Minister
disagreed with the advice he received. In such a case, little or no explanation
would be required. This, however, is not one of those cases.
[23]
Here,
the opinion of the CSC was unequivocal that it did not believe that Mr. LeBon
would, after transfer, commit an act of organized crime. CSC was of the further
opinion that Mr. LeBon was not likely to commit any indictable crime after
release. During oral argument, counsel for the Attorney General could not point
to any cogent evidence in the record that could reasonably undermine or
contradict the opinions of the CSC. In this circumstance, whatever contrary conclusion
the Minister reached about the likelihood of an act of organized crime being
committed is not justified, transparent or intelligible.
[24]
Turning
to the second unanswered question, the statutory requirement that the Minister
provide reasons when refusing a transfer mandates the Minister to do more than
simply assert that “[h]aving considered the unique facts and circumstances of
this application and the factors enumerated in section 10, I do not believe
that a transfer would achieve the purposes of the Act”.
[25]
Where,
as in the present case, there are factors that support a transfer, the Minister
must demonstrate some assessment of the competing factors so as to explain why
he refused to consent to a transfer. Without such an assessment, the Minister’s
decision is neither transparent nor intelligible. Nor does the decision comply
with the statutory requirement imposed by subsection 11(2) that the Minister
give reasons.
Conclusion
[26]
Because
the Minister’s decision was not justified, transparent and intelligible it was
unreasonable and so it should be set aside.
[27]
It
is not necessary for me to consider Mr. LeBon’s Charter-based argument
that the Minister could not draw any adverse conclusion from Mr. LeBon’s
post-arrest silence, and I decline to do so.
[28]
It
follows that I would allow the appeal and set aside the judgment of the Federal
Court. Making the judgment that the Federal Court should have made, I would
allow the application for judicial review of the Minister’s decision, set aside
the Minister’s decision, remit the matter back to the Minister and require the
Minister to decide on Mr. LeBon’s transfer request in accordance with these
reasons within 60 days. I would further award Mr. LeBon his costs in this Court
and in the Federal Court, which I would fix in the all-inclusive amount of
$5,000.00.
“Eleanor
R. Dawson”
“I
agree.
Gilles Létourneau J.A.”
“I
agree.
K. Sharlow J.A.”
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