Date: 20110527
Docket: T-1202-10
Citation: 2011 FC 625
Vancouver, British Columbia,
May 27, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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ALEXIE RANDHAWA
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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
ORDER AND ORDER
[1]
In
June 2008, the Applicant, a citizen of Canada, was sentenced to five years
imprisonment in California on a guilty plea to the charge of conspiracy to
traffic in narcotics. In December 2008, the Applicant made a request pursuant
to the International Transfer of Offenders Act, SC 2004 c 21 (Act)
to be transferred to Canada in order to serve the remainder of his sentence. In
a decision dated July 8, 2010, the Respondent Minister rejected the request. The
present Application is a judicial review of that decision.
[2]
The
issue for determination is whether the decision is reasonable having regard to
the purpose of the Act, and the factors found to be relevant to the
Applicant’s transfer request. Section 3 of the Act states its purpose:
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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.
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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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[10]
Section
10 of the Act states the factors to be considered:
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10.
(1) In determining whether to consent to he 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.
[Emphasis added]
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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 residence 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 delinquent 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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[3]
The
Minister’s decision reads as follows:
[1] 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.
[2] The applicant, Alexie Randhawa, is serving a
sentence of imprisonment of five years in the United States for the following
offence: conspiracy. On June 3, 2008, following a controlled traffic stop of
his accomplice’s vehicle, approximately 107 kilograms of cocaine were found
concealed in cardboard boxes and suitcases. The applicant was apprehended
with his accomplice.
[3] The Act requires that I consider whether, in
my 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. In considering this factor, I note that the applicant worked
with an accomplice and the nature of their activity suggests that other
accomplices were involved who were not apprehended. Furthermore, the applicant
had ties to a drug trafficking organization believed to be involved in the
transportation of drugs from Canada into the United States. The applicant was
involved in the commission of a serious offence that, if successfully
committed, would likely result in the receipt of a material or financial
benefit by the group he assisted.
[4] The Act also requires that I consider
whether the offender’s return to Canada would constitute a threat to the
security of Canada. In considering this factor, I note the applicant’s links to
a drug trafficking organization, the absence of evidence that the applicant has
severed ties from the criminal organization, the serious nature of the
offence and the amount of drugs involved. The applicant’s offence involves a
premeditated criminal enterprise involving multiple actors. It is my belief
that, if the transaction had been successfully completed, it would have had
long term implications on society.
[5] I recognize the family factors involved in
this file, including the fact that the applicant’s family members remain
supportive. I also recognize the applicant’s lack of a criminal record in Canada, his expression of remorse and his rehabilitation efforts while incarcerated.
[6] 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.
Vic
Toews, P.C., Q.C, M.P.
JUL 08 2010
[Emphasis added]
[Paragraph numbers added]
(Application Record, pp. 8 - 9)
It is agreed that the Minister purports to address the
factors considered relevant to the Applicant’s request: paragraph 3 in respect
of section 10(2)(a), and paragraph 5 in respect of section 10(1)(c). Regarding
paragraph 4 which purports to address section 10(1)(a), during the course of
the hearing of the present Application, without objection by Counsel for the
Applicant, Counsel for the Minister withdrew reliance on this factor for the
admitted reason that the Minister’s decision does not conform to the law as
stated by Justice Kelen in the decision in Getkate v Canada (Public Safety
and Emergency Preparedness) 2008 FC 965. Nevertheless, Counsel for the
Minister argues that the Minister’s analysis of the section 10(2)(a) factor supports
the essence of the decision under review which is the Minister’s stated belief
that a transfer of the Applicant to Canada would not achieve the purposes of the
Act. I disagree with the proposition advanced.
[4]
The
Minister’s decision is required to be reviewed on the standard of
reasonableness which is described in Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at paragraph 47:
A
court conducting a review for reasonableness inquires into the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes. In judicial review, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law. [Emphasis added]
I find that the Minister’s section 10(2)(a) analysis
provides no justification for his stated belief because he has failed to comply
with the requirements of section 10(2)(a). Paragraph 3 states known facts,
and an assumed fact, about the Applicant’s act of criminal conduct resulting in
his incarceration, but does not provide what is required: an opinion, supported
by cogent evidence, as to whether the Applicant, after the transfer, will
commit a terrorism offence or criminal organization offence. As a result, I
find that the Minister’s decision is not defensible in respect to the facts and
law.
ORDER
THIS COURT ORDERS that:
The decision under review is set
aside and the matter is referred back to the Minister for redetermination on
the direction that the redetermination be conducted within 60 days of the date
of this order.
As he is successful in the
present Application, I award costs to the Applicant.
“Douglas
R. Campbell”
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