Date: 20110704
Docket: T-1486-10
Citation: 2011 FC 819
Vancouver, British Columbia, July
4, 2011
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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SUNNY YU
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Applicant
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and
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MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of a decision of the Minister of Public Safety
(the Minister), dated August 16, 2010, whereby the Minister denied the
applicant’s request under the International Transfer of Offenders Act,
SC 2004, c 21 [ITOA] to have his prison sentence transferred from the
United States of America (the US) to Canada.
I. Background
[2]
The
applicant, born January 18, 1979, is a Canadian citizen. In September of 2001,
he went to the US to study finance at Hawaii Pacific University in Honolulu. While there, he became the
subject of an investigation conducted by the Bureau of Immigration and Customs
Enforcement and, on June 22, 2003, he was arrested for his involvement with the
import of 4 kilograms of methamphetamine from Canada to Hawaii. It was alleged that he was responsible
for overseeing the transportation and delivery of the drugs and for paying the
couriers involved.
[3]
On
September 23, 2005, the applicant pled guilty and was convicted of “Conspiracy
to import into the United
States in excess
of 500 grams of methamphetamine”. He was sentenced to 14 years in prison,
followed by 5 years of supervised release.
[4]
In 2006,
the applicant applied to have his sentence transferred to Canada. The former Minister of
Public Safety and Emergency Preparedness approved the applicant’s request.
However, in June of 2007, the US denied it, citing the
seriousness of the offence that the applicant had committed. On March 13, 2008,
the applicant’s accomplice, a Mr. Khai Ong, was successfully transferred from
the US to Canada.
[5]
The
applicant applied to US officials, for a second time, to be transferred to Canada. This time, in January of
2009, officials with the US Department of Justice approved the applicant’s
request. On February 11, 2009, the applicant applied to the Minister. In his
application, the applicant indicated, “I know I have made some wrong choices
but I hope I can be given a chance to show that I have learned from my
mistakes.”
[6]
In April
of 2010, the Correctional Service of Canada’s (CSC’s) International Transfer
Unit (ITU) prepared a report for the Minister’s consideration. The report
indicated, among other things, that there was no reason to regard the applicant
as a threat to the security of Canada, that his social and familial
ties in British
Columbia
remained supportive, that he would be supported by his mother and sisters upon
his return, and that the applicant had no other criminal convictions or
outstanding charges.
[7]
The report
also indicated that the likelihood of the applicant re-offending after being
released was low. In terms of whether the applicant would be likely to commit a
“criminal organization offence” within the meaning of section 2 of the Criminal
Code, RSC 1985, c C-46 [Criminal Code], the report indicated that
the information obtained by the CSC from its security and intelligence
counterparts (including the Canadian Security Intelligence Service) did not
suggest that he would. The report also stated that, “File information does not
identify him as a member of an organized crime group.”
II. The decision under review
[8]
On August
16, 2010, the Minister rejected the applicant’s request for transfer.
[9]
After
setting out the purposes of the ITOA and the facts of the applicant’s
case, the Minister indicated as follows:
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 applicant was implicated in the
planning and execution of a sophisticated drug transaction involving a large
amount of drugs being transported from Canada into the U.S. File information suggests
that he was responsible for overseeing the transportation and delivery of the
drugs and for paying the couriers. The applicant was involved in the commission
of a serious offence that, if successfully committed, would likely have
resulted in the receipt of a material or financial benefit by him and those
involved in the group he assisted.
The Act 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 the
applicant’s mother and siblings 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.
III. Issues
[10]
In his
written submissions, the applicant advanced a number of arguments based on
section 6 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Charter]. Essentially, the applicant argued that by rejecting the
applicant’s request for a transfer to Canada,
the Minister was violating his mobility rights as protected by subsection 6(1)
of the Charter. In his oral submissions, however, the applicant conceded
that this issue was recently addressed by the Federal Court of Appeal in Divito
v Canada (Minister of Public Safety
and Emergency Preparedness),
2011 FCA 39, 413 NR 134. The Court of Appeal found that subsection 6(1) of the Charter
is not engaged in the prisoner transfer context. I am bound by that decision.
[11]
As such,
the controlling issue on this application is: Did the Minister err in refusing
to grant the applicant’s request for a transfer?
IV. Standard of review
[12]
A decision
by the Minister on whether or not to consent to a prisoner transfer is
discretionary in nature and, as such, is entitled to significant deference. The
reasonableness standard of review applies (Randhawa v Canada (Public Safety
and Emergency Preparedness), 2011 FC 625 at para 4; Holmes v Canada (Minister of Public Safety
and Emergency Preparedness),
2011 FC 112 at paras 45-46 [Holmes]; Dudas v Canada (Minister of Public Safety
and Emergency Preparedness),
2010 FC 942 at para 23, 373 FTR 253). The Court will, thus, consider the
existence of justification, transparency and intelligibility within the
decision-making process, as well as 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).
V. Analysis
[13]
Under the ITOA,
a Canadian offender incarcerated in a foreign state (provided Canada has
entered into a transfer agreement with that foreign state) may request to have
their sentence transferred to Canada. Subsection 8(1) of the ITOA
indicates that the consent of three parties is required in order for a transfer
to occur: the offender, the foreign state and Canada:
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Consent of
three parties
8. (1)
The consent of the three parties to a transfer — the offender, the foreign
entity and Canada — is required.
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Consentement
des trois parties
8. (1) Le transfèrement nécessite
le consentement des trois parties en cause, soit le délinquant, l'entité
étrangère et le Canada.
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[14]
Canada’s consent is provided by the
Minister. Subsections 10(1) and 10(2) of the ITOA set out factors that
the Minister is required to consider when determining whether to provide that
consent:
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Factors —
Canadian offenders
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.
Factors —
Canadian and foreign offenders
(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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Facteurs
à prendre en compte : délinquant canadien
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.
Facteurs
à prendre en compte : délinquant canadien ou étranger
(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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[15]
The
factors set out in subsections 10(1) and 10(2) are not exhaustive. The Minister
is free to take other factors into consideration as well, so long as they are
relevant to the purpose of the Act (Holmes, above at para 12; Balili
v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC
396 at para 3). The purpose of the ITOA is set out in section 3:
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Purpose
3. 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.
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Objet
3. 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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[16]
If the Minister
does not give consent, subsection 11(2) of the ITOA requires him to
provide reasons. Justice
Michael Phelan,
in Holmes, above at paras 42-44, noted that the Minister’s reasons under
subsection 11(2) must satisfy the four purposes for adequate reasons set out by
the Federal Court of Appeal in Vancouver International Airport Authority v
Public Service Alliance of Canada, 2010 FCA 158 at para 16, 320 DLR (4th)
733, with particular emphasis on the “substantive” and “justification,
transparency and intelligibility” purposes. In essence, it is important that
the applicant be able to determine the basis for why the Minister decided the
way he did, and that basis must be understandable, with a discernable
rationality and logic.
[17]
In the
current case, the Minister’s reasons contained discussion of only two factors:
1) s 10(1)(c) – “whether the offender has social or family ties in
Canada”, and 2) s 10(2)(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”.
[18]
Under
paragraph 10(1)(c), the Minister acknowledged that the applicant had a
supportive family in Canada. This would presumably have
militated in favour of granting the applicant’s request.
[19]
Under
paragraph 10(2)(a), the Minister focused on whether or not the applicant
would, after the transfer, commit a criminal organization offence. In this
regard, the Minister simply listed the following facts: the applicant was
implicated in planning and executing a sophisticated drug transaction, a large
amount of drugs were involved, the applicant was responsible for overseeing the
transportation and delivery of the drugs, the applicant’s offence was serious
and, had it been successful, would likely have resulted in the receipt of a
material or financial benefit to him and to those involved in the group that he
assisted.
[20]
Although
the Minister did not specifically say so, one is left with the impression that
the facts recited by the Minister led him to conclude that the factor set out
in paragraph 10(2)(a) had been satisfied: i.e. that the applicant would,
after being transferred to Canada, commit a criminal
organization offence. Moreover, since no other reasons were cited by the Minister
in support of his decision to deny the applicant’s request, one is left with
the further impression that the Minister’s finding under paragraph 10(2)(a)
was determinative.
[21]
This is
problematic. No reasons were provided to explain why the facts recited by the
Minister, which all related to the drug offence committed by the applicant in
2003, led the Minister to conclude that, in the future, the applicant would
commit a criminal organization offence.
[22]
It is true
that the facts as recited by the Minister might be seen as going part of the
way towards justifying a determination that the applicant had committed a
“criminal organization offence” in the past. Central to the definition of
“criminal organization offence” set out in section 2 of the Criminal Code
is the definition of “criminal organization” found at subsection 467.1(1):
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Definitions
467.1
(1) The following definitions apply in this Act.
“criminal
organization” means a group, however organized, that
(a) is
composed of three or more persons in or outside Canada; and
(b) has
as one of its main purposes or main activities the facilitation or commission
of one or more serious offences that, if committed, would likely result in
the direct or indirect receipt of a material benefit, including a financial
benefit, by the group or by any of the persons who constitute the group.
It does not
include a group of persons that forms randomly for the immediate commission
of a single offence.
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Définitions
467.1 (1) Les définitions qui
suivent s’appliquent à la présente loi.
…
«
organisation criminelle » Groupe, quel qu’en soit le mode d’organisation :
a) composé d’au moins trois
personnes se trouvant au Canada ou à l’étranger;
b) dont un des objets principaux
ou une des activités principales est de commettre ou de faciliter une ou
plusieurs infractions graves qui, si elles étaient commises, pourraient lui
procurer — ou procurer à une personne qui en fait partie — , directement ou
indirectement, un avantage matériel, notamment financier.
La
présente définition ne vise pas le groupe d’individus formé au hasard pour la
perpétration immédiate d’une seule infraction.
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[23]
The
Minister found that the applicant “was involved in the commission of a serious
offence that, if successfully committed, would likely have resulted in the
receipt of a material or financial benefit by him and those involved in the
group he assisted.” However, the Minister nevertheless failed to explain how
any of the other requirements for being involved in a “criminal organization”
were met in the applicant’s case: he did not indicate that the applicant
belonged to a group composed of three or more persons, or that the group had as
one of its main purposes the commission of one or more serious offences, or
that the group was not formed randomly for the immediate commission of a single
offence. Although counsel for the respondent suggests that these elements can
all be inferred from the record, there is nothing in the Minister’s reasons to
suggest that they were considered by him. Furthermore, it is important to note
that the CSC report specifically indicated that the applicant had not been
identified as a member of an organized crime group.
[24]
Even if
the Minister had provided a justified, transparent and intelligible explanation
as to why he believed the applicant had committed a criminal organization
offence in the past, this would do nothing to address the more relevant
question as to why the Minister was of the view that the applicant was going to
commit a criminal organization offence in the future. In this regard, it is
important to note that paragraph 10(2)(a) uses the word “will” as
opposed to “may” with regards to the future offence and, as such, a high degree
of certitude is required (Grant v Canada (Minister of Public Safety and
Emergency Preparedness) 2010 FC 958 at paras 36-37, 373 FTR 281; Holmes,
above at paras 13-14).
[25]
An
explanation was particularly important in the current case, because CSC
officials had indicated to the Minister that, based on its intelligence, there
was no reason to believe that the applicant would be likely to commit a
criminal organization offence. This Court, on a number of occasions, has
indicated that although the Minister is free to depart from the advice provided
by his advisors, when he does, he has a heightened duty to explain the reason
for that departure. In Singh
v Canada (Minister of Public Safety and Emergency
Preparedness), 2011 FC
115 at paras 12-13, Justice Phelan indicated:
12 The Minister may reach a
conclusion which is at odds with the advice he is receiving. He may weigh
stipulated and other factors differently. However, it is incumbent on the
Minister to explain how he could reach the conclusion or concern.
13
In this case, the Minister had to explain how he was concerned that the
Applicant would continue his organized crime activities when the evidence was
that the Applicant had no links to organized crime. The need for reasoned
explanation is even more acute when the information from Correctional Service
Canada's counterparts in Security and Intelligence areas, and in CSIS, did not
lead the departmental advisors to believe that the Applicant would, after
transfer, commit an act of organized crime.
[Emphasis added]
See also Grant v Canada (Minister of Public Safety and Emergency
Preparedness),
[2010] FCJ No 386 (QL) and Vatani
v Canada (Minister of Public Safety and Emergency
Preparedness), 2011 FC
114 at paras 8-9.
[26]
The
Minister failed to provide adequate reasons explaining why he was of the view
that the applicant would, after being transferred to Canada, commit a criminal organization offence.
The evidence on file indicated that there was a very low likelihood of the
applicant re-offending, let alone committing a criminal organization offence.
Beyond generally indicating that the transfer would not achieve the purposes of
the Act, the Minister provided no other justification for his rejecting the
applicant’s request for consent.
[27]
The
respondent seeks to rely on the recent decision of this Court in Duarte v Canada (Minister of Public Safety and
Emergency Preparedness),
2011 FC 602 [Duarte] to argue that the decision
of the Minister in the current case was reasonable. However, the decision under
review in Duarte was different.
[28]
In that
case, the Minister denied an application for transfer after citing concerns
under both paragraph 10(1)(a), that the offender’s return would
constitute a threat to the security of Canada, and paragraph 10(2)(a),
that the offender would, after the transfer, commit a criminal organization
offence. Not only were two negative factors considered by the Minister in that
case, as opposed to just one, but the Minister’s analysis under paragraph
10(2)(a) was also more fulsome. The Minister noted that the applicant
had previous ties with a criminal organization and had a prior criminal record
in Canada, including assault with a
weapon charges. The Minister also indicated that the file evidence relating to
the offence in question - conspiracy to possess with intent to distribute more
than five kilograms of cocaine - suggested that there were accomplices involved
who had not been apprehended.
[29]
While it
may have been possible to find the required justification, transparency and
intelligibility within the Minister’s decision-making process in Duarte, those required elements are
decidedly lacking in the current case.
[30]
For the
foregoing reasons, I find that the Minister’s decision to deny the applicant’s
request for a transfer was unreasonable.
JUDGMENT
THIS COURT ADJUDGES
that the application for judicial review is allowed, the Minister’s
decision is quashed, and the matter is returned for re-determination within 60
days of the date of judgment. The whole with costs to the applicant.
“Danièle
Tremblay-Lamer”
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