Tippett v. Canada (Public Safety and Emergency Preparedness)

Tippett v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2011-07-04
Neutral citation
2011 FC 814
File numbers
T-1498-10
Decision Content
Federal Court
Cour fédérale
Date: 20110704
Docket: T-1498-10
Citation: 2011 FC 814
Ottawa, Ontario, July 4, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
BRADLEY TIPPETT
Applicant
and
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
APPLICATION
[1] This is an application for judicial review of a decision made by the Minister of Public Safety and Emergency Preparedness (Minister) on or about August 10, 2010 and communicated to the Applicant on August 18, 2010 (Decision) which denied the Applicants transfer request under the International Transfer of Offenders Act (ITOA).
BACKGROUND
[2] In October of 2007, the Applicant, Bradley Tippett, and two accomplices arranged to purchase 100 kg of cocaine, at a price of $14,500 per kilogram ($1,450,000.00), from a confidential informant (CI) in Florida. The Applicant negotiated with the CI regarding how the transaction would occur and agreed to purchase 25 kg first and purchase the remainder in 25 kg increments. The Applicant, accompanied by one accomplice, met with the CI in Florida to purchase the first 25 kg, inspected 1 kg of cocaine, agreed to the acceptability of the cocaine, and requested the remaining 24 kg. At that time, law enforcement officers arrested the Applicant and his accomplice and subsequently recovered $350,000 of US currency from their vehicle.
[3] On May 30, 2008, the Applicant pleaded guilty to “Conspiracy to Possess with Intent to Distribute Cocaine” and was sentenced to 63 months of imprisonment and three years of supervised release, following his release from imprisonment.
[4] On September 30, 2008, the Applicant requested, pursuant to the ITOA, that the Minister approve his request to be transferred to Canada in order to serve the remainder of his prison sentence (Request).
[5] The CSC Request Forms for Canadian Citizens incarcerated abroad (CSC Request Forms) expressly required the Applicant to provide reasons in support of his Request. The forms provide several opportunities for the Applicant to make written representations to the Minister addressing all pertinent factors and circumstances of his individual Request in respect of the pressing and substantial objectives of the ITOA. For example, the forms invited the Applicant to provide information regarding a number of factors, including:
1. SUPPORT
List persons or agencies who might be willing to give you support following your transfer.
2. OTHER INFORMATION:
Set out any other information that you think Canadian officials should know about you or your case.
3. PERSONAL DATA:
Synopsis of personal and family history.
4. RESIDENCE ABROAD:
How long have you resided abroad?
Briefly state the reasons for being abroad.
5. CURRENT OFFENCE(S):
Name of accomplices(s)
Offenders version of offense(s)
6. PREVIOUS CRIMINAL HISTORY (In Canada and abroad):
7. PROGRAM FACTORS:
Offenders occupational and program interests
Drug /alcohol involvement
General health
Offenders immediate needs
[6] In completing the CSC Request Forms in support of his request, the Applicant:
a. listed his wife as a person willing to provide him support after his transfer;
b. provided the following account of his reasons for being abroad:
I came to Miami for a vacation and was charged with conspiracy to possess with intent to distribute 5 kg or more of cocaine.
I pled guilty and have been sentenced to 63 months. I was given Minor Role by the Crown Prosecutor.
c. Named two accomplices;
d. Provided the following account of his version of the offense:
I was in Miami on vacation and I was with the wrong people at the wrong time and I was arrested and charged with conspiracy to possess with intent to distribute 5 kg or more of cocaine. I was given Minor Role by the Crown Prosecutor and was sentenced to 63 months.
e. Identified his most serious conviction/type of conviction as:
Damage of Property and DWI
f. Identified only “Interested in receiving GED” as his “occupational and program interests” under the “program factors” heading.
[7] The Applicant chose not to submit “any other information that you think Canadian officials should know about you or your case” and presented no information demonstrating: his acceptance of responsibility for his criminal offense; his efforts at rehabilitation in the US; or any particular rehabilitation and reintegration or other needs that could not be met in the US. He also chose not to disclose information regarding: outstanding charges; previous supervision experience; history of violence (not involving property damage); or other convictions.
[8] Significantly, in respect of the “PROGRAM FACTORS” heading, the Applicant identified no other “occupational and program interests,” no drug or alcohol involvement, and no immediate treatment, protection or other needs.
[9] On December 23, 2008, the Applicant met with his Unit Team at the Northeast Ohio Correctional Center for his “initial classification.” The Unit Team “recommended participation in the Financial Responsibility Program to address his felony assessment, GED, and vocational training.” The Certified U.S. Case Summary notes that “participation in the facility 40 hour substance abuse group” was identified as a long-term program participation goal for the Applicant.
[10] The CSC Community Assessment also noted that, as of March 6, 2009, when the Applicant’s parents were contacted, they: were not “aware of [the Applicant] participating in, or completing vocational or job-training programs”; were “not confident what [the Applicant’s] employment plans are for his release”; “could not describe social network [the Applicant] was involving himself with prior to the index offense”; and “acknowledge[d] he was obviously associating with negative peers during the commission of the offense,” but they “d[id] not know the extent of [the Applicant’s] role within this peer group” and “could not comment on the level of influence his most recent associates have had on him.”
[11] As the Applicant submitted his Request pursuant to the Council of Europe Convention on the Transfer of Sentenced Persons, Canada must make a decision prior to seeking a decision from the US.
[12] On July 30, 2010, the Minister denied the Request (Decision).
THE DECISION
[13] In his reasons for denying the Request, the Minister: (a) identified the purposes of the ITOA; (b) noted that these purposes “serve to enhance public safety in Canada”; and (c) articulated the legislative framework in which he exercised his discretion in considering requests for transfer under the ITOA as follows:
For each application for transfer, I examine the unique facts and circumstances as presented to me in the context of the purpose of the Act and the specific factors enumerated in section 10.
[14] The Minister outlined the circumstances of the offense for which the Applicant is serving a foreign sentence as follows:
The applicant, Bradley Tippett, is serving a sentence of imprisonment for five years and three months in the United States for conspiracy to possess with intent to distribute cocaine. On October 25, 2007, the applicant and an accomplice were apprehended when attempting to purchase large quantities of cocaine. An amount of $350,000 was recovered from their vehicle.
[15] The Minister identified a number of concerns upon his examination of the unique facts and circumstances of the Applicant’s Request – as presented to him – in respect of his mandated consideration of “whether, in[his] opinion, the offender will, after the transfer, commit a criminal organization offense within the meaning of section 2 of the Criminal Code” and noted that:
a. the Applicant “worked with two accomplices”
b. “there is information on file that suggests that another accomplice was involved who was not apprehended”;
c. the Applicant “has ties with an organized criminal syndicate believed to be involved in the purchase and trafficking of a large quantity of narcotics”; and
d. the Applicant “was involved in the commission of a serious offense that, if successfully committed, would likely result in the receipt of a material or financial benefit by the group he assisted.”
[16] The Minister noted in respect of his mandated consideration of “whether the offender has social or family ties in Canada” that the Applicant “has social and family ties in Canada and that [his] family members remain supportive.”
[17] The Minister also noted the Applicant’s criminal history, including a number of young offender and adult convictions between 1996 and 2004 and information that the Applicant was wanted in Calgary for an impaired driving conviction in 2006.
[18] In concluding his reasons, the Minister summarized his approach as follows:
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.
LEGISLATIVE FRAMEWORK
[19] The ITOA states as follows:
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.
…
Administration of Act
6. (1) The Minister is responsible for the administration of this Act.
Designation by Minister
(2) The Minister may, in writing, designate, by name or position, a staff member within the meaning of subsection 2(1) of the Corrections and Conditional Release Act to act on the Minister's behalf under section 8, 12, 15, 24, 30 or 37.
Request for transfer
7. A person may not be transferred under a treaty, or an administrative arrangement entered into under section 31 or 32, unless a request is made, in writing, to the Minister.
CONSENT
Consent of three parties
8. (1) The consent of the three parties to a transfer — the offender, the foreign entity and Canada — is required.
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.
Double incrimination
…
Application
6. (1) Le ministre est chargé de l'application de la présente loi.
Délégation expresse
(2) Le ministre peut désigner par écrit — nommément ou par désignation de poste — tout agent au sens du paragraphe 2(1) de la Loi sur le système correctionnel et la mise en liberté sous condition pour l'exercice des attributions que lui confèrent les articles 8, 12, 15, 24, 30 et 37.
Demande de transfèrement
7. Le transfèrement d'une personne en vertu d'un traité ou d'une entente administrative conclue en vertu des articles 31 ou 32 est subordonné à la présentation d'une demande écrite au ministre.
CONSENTEMENT
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.
[20] Subsection 10(1) of the ITOA sets out the factors that the Minister must consider in determining whether to grant or deny a Canadian offender’s request for a transfer :
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.
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.
[21] Subsection 10(2) of the ITOA sets out the factors that the Minister must consider in determining whether to grant or deny a Canadian offender’s or a foreign offender’s request for a transfer :
Factors — Canadian and foreign offenders
10(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.
Facteurs à prendre en compte : délinquant canadien ou étranger
10(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).
ISSUES RAISED
[22] In his written submissions, the Applicant raises three main issues that he says reveal the Decision to be wholly unreasonable and lacking in transparency and intelligibility:
1. The Minister’s Decision fails to account for the discrepancy between the Applicant and his accomplice, Mr. Curtis, who was deemed not to have links to organized crime and who has since been transferred to Canada;
2. The Minister’s Decision, to the extent that it is concerned about the Applicant’s prior Canadian criminal record, provides no reason whatsoever as to why continuing to exclude the Applicant will advance the objectives of the Act;
3. The Minister’s Decision does not provide any substantive or intelligible explanation for how denying the Applicant’s transfer request is consistent with the purpose of the Act.
[23] These issues were somewhat modified and refocused at the oral hearing of this application in Ottawa on June 27, 2011 as indicated in my Analysis.
STANDARD OF REVIEW
[24] Following Dunsmuir v New Brunswick, 2008 SCC 9, the Federal Court has held that decisions of the Minister refusing offender transfer requests, pursuant to the ITOA, are discretionary, entitled to significant deference, and thus reviewable on a reasonableness standard.
[25] The Parties agree that the applicable standard for the issues raised is reasonableness and the Court concurs.
[26] In Grant v Canada (Public Safety and Emergency Preparedness), 2010 FC 958, at paragraphs 26-32, Justice David Near found that the Minister’s interpretation and application of the ITOA in exercising his discretion to grant or deny transfer requests under that statute will similarly attract the post-Dunsmuir presumption that his decisions be reviewable on a standard of reasonableness.
[27] As Justice Sean Harrington underscored in Michael DiVito v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 983, the question for the reviewing court is not whether it would have been reasonable for the Minister to agree to the transfer, but whether it was unreasonable to refuse the transfer.
[28] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
i) No Consideration of the Organized Crime Factors in relation to Mr. Curtis
[29] The CSC Memorandum of April 22, 2010 provided to the Minister explains that the Applicant and his accomplices Brent Curtis and Marcel Meir Reboh met with a CI to arrange the planned transaction for which the Applicant and his co-defendants were ultimately convicted.
[30] The same CSC Memorandum indicates that the Applicant has ties to organized crime in the person of Mr. Reboh’s brother, Max Reboh. It is alleged that Max Reboh funded the trip of the Applicant and Mr. Curtis to Florida. On the strength of this assertion, the Minister concludes that “the Applicant has ties with an organized crime syndicate believed to be involved in the purchase and trafficking of a large quantity of narcotics.” There is no other information in the record apart from the link between the Applicant and Max Reboh through Marcel Reboh and the Florida trip that appears on the record.
[31] However, the file for Mr. Curtis, whose transfer was initially denied on May 14, 2009, contained no CSC Memorandum or other information alleging that he had links to organized crime.
[32] Moreover, subsequent to a successful judicial review application of his denial in September 2010, Mr. Curtis has been transferred to Canada.
[33] There is a clear discrepancy between the treatment of the Applicant and Mr. Curtis with respect to the allegation of a link to organized crime. On the facts, it is established that both men were funded by Max Reboh to transport drugs from Florida and were known to Max’s brother Marcel; however, not only is the link to organized crime absent from the Curtis file, the Minister also chose to repatriate Mr. Curtis after judicial review of his earlier decision.
[34] While there is a distinction between the respective criminal backgrounds and prior records of the Applicant and Mr. Curtis, there is nonetheless an irreconcilable factor in the Curtis file, which ultimately militated in favor of the Applicant’s transfer back to Canada. The Minister must be consistent and transparent in his reasons and may not arbitrarily invoke alleged links to organized crime to delay or frustrate a transfer request. Clearly, the link to organized crime has significance in the reasoning of the Minister to deny the Applicant’s Request; however, it is unclear what the significance of such link may be, where it has not precluded the transfer of the Applicant’s accomplice back to Canada.
[35] Effectively, the significant difference between the file of Mr. Curtis and that of the Applicant resides in the fact that the Applicant has a criminal record, whereas Mr. Curtis does not. No conclusion is contingent on this bare fact as the recidivism rate for the Applicant has been judged as low and he is assessed as not likely to commit an organized crime offense.
ii. Canadian Criminal Record does not Preclude Transfer Back to Canada
[36] The criminal record of the Applicant is clearly included in the CSC Memorandum to the Minister, which also includes an outstanding conviction for impaired driving in Alberta and an assault conviction.
[37] There is no reason articulated by the Minister as to why it would not meet the objectives of the Act to deny the transfer of the Applicant to Canada given his prior criminal record. The Canadian system is aware of the Applicant’s record and there is no evidence that the Alberta Prairie Region cannot manage his sentence.
[38] To the contrary, if indeed the existence of a prior criminal record requires rehabilitation of the Applicant, such rehabilitation will only be managed by the Prairie region intake unit if a transfer is granted.
[39] Astonishingly, if the Applicant serves his full sentence in North East Ohio Correctional, he will be deported to Canada on or about May 21, 2012 and will not be subject to any supervision requirement or controls and his foreign convictions will not be recorded in the RCMP’s criminal records databank as part of his Canadian criminal record.
[40] In this sense, the Minister appears to be “free riding” off the American system in order to maintain the Applicant’s term of incarceration, which would effectively circumvent any transitional rehabilitation assessment in Canada that is part of an early return. In this light, the Minister’s continued refusal cannot be understood as a lawful exercise of discretion because the Minister is constrained from the outset by the purpose of the ITOA.
[41] As part of his response to any transfer request, the Minister must turn his mind to the question of rehabilitation and provide intelligible and transparent reasons as to how rehabilitation and reintegration of the offender will be advanced by his decision, or conversely, how the administration of justice will be protected. It is entirely inadequate for the Minister to simply state as he does in his Decision that “I do not believe that a transfer would achieve the purposes of the Act.”
[42] More fundamentally, the Minister must be disabused of the notion that there is a presumption that a decision that simply considers the statutory factors pursuant to section 10 of the ITOA meets the objectives of the ITOA. The statutory factors must be considered in light of the purposes of the Act. If indeed, the Minister believes that delaying the transfer of the Applicant to Canada will enhance public safety in Canada by providing no rehabilitative assessment or training to the Applicant in Canada and simply reinserting him into his community with no police supervision, the Minister must provide a basis for his conclusion.
[43] Similarly, if the Applicant supposedly poses a threat to the public safety by his early return, while still incarcerated, the Minister must provide evidence for this assertion.
[44] Logically, the Minister has committed a fallacy and has obfuscated his reasons under the rubric of enhancing public safety. His Decision in this regard is neither transparent nor intelligible. Any substandard meaning that is ascribed to his conclusion must be imputed because he has failed to provide transparent reasons. It is not the role of the Court to impute meaning to bare conclusions, but rather to determine whether the reasons proffered transparently and intelligibly support the conclusion.
iii. Decision does not Accord with Purpose of the ITOA
[45] The Applicant suffers from a problem with alcohol abuse that has escalated to cocaine use.
[46] While being housed at a privatized detention facility in the US, the Applicant needs access to proper treatment. Where clear evidence is raised as to the nature of the rehabilitative and reintegrative needs of the Applicant, it is incumbent on the Minister to determine whether the Applicant’s needs may be advanced through effecting his transfer from the foreign state to Canada.
[47] On the record, there is no comparative information regarding rehabilitative treatment programming in the US as compared to Canada. In this regard, it is important to note that there is also no presumption that public safety will be enhanced by maintaining a foreign convicted offender outside of Canada. On the facts of the case, although there is mention of a prior assault charge, there is no indication that the Applicant is either prone towards violence or that he has or will cause violence while detained in the US or in Canada. To the contrary, the record reveals that
Mr. Tippett 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.
[48] The question of comparative analysis of US and Canadian inmate programming is not an esoteric one, but it has been completely marginalized on the false assumption that public safety for Canadians and the inmate alike are fostered by maintaining detention abroad. The analysis here is distinct from a specific inquiry into whether the foreign prison system violates the detainee’s human rights (i.e. ITOA s. 10(1)(d)). It raises pertinent questions such as:
1. Does the Bureau of Prisons (BOP) provide early pre-release or treatment programming for non-citizens who will be deported?
2. Is Youngstown prison administered publicly or privately through the Corrections Corporation of America (CCA)? What is the relative standard of private-run prisons in the United States as compared to public jails in Canada?
3. Does the for-profit model of jailing impact upon the responsiveness of staff and the institution to the individual needs of the inmate who is seeking transfer?
4. Are Sentenced Criminal Aliens (such as the Applicant) eligible for halfway house release?
5. Are Sentenced Criminal Aliens (such as the Applicant) eligible to participate in drug treatment programs in view of the drug addiction problem of the Applicant?
6. How does eligibility for parole compare between Canada and the US under the Corrections and Conditional Release Act?
7. Does the Minister’s declaration regarding organized crime links of the Applicant bear upon his conditions of sentence in the United States (i.e. does it disqualify him from an earlier release date)?
8. Are there issues of overcrowding at North East Ohio? How do such issues compare to Prairie Region federal correctional facilities in Canada?
[49] The fact that none of these questions has ever been raised or answered by the Minister is a testament to a systemic disregard in respect of meeting the objectives of the ITOA in a manner that is meaningfully responsive to the rehabilitation and reintegration needs of the Applicant in this community. This disconnect between the Minister’s inquiry and the objectives of the Act renders his ultimate conclusion entirely unreasonable.
Respondent
i. ITOA Legislative Framework and the Minister’s Role in the ITOA Context
[50] Section 6 of the ITOA vests the Minister with the responsibility for the administration of the ITOA. Upon receipt of a request for a transfer under section 7, and subject to the consent of the foreign entity to the transfer under section 8, the Minister is empowered by Parliament to exercise substantial discretion in determining whether to consent to each transfer request, subject to his consideration of the relevant facts and the relevant factors set out in the legislation.
[51] In Holmes v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 112, Justice Michael Phelan rejected a narrow interpretation of the term “administration of justice” in the Act’s Purpose clause and held that it includes “public safety and security considerations.” In his reasons for concluding that any infringement of section 6 Charter rights is saved by section 1 of the Charter, Justice Phelan observed that the ITOA’s pressing and substantial objectives also include Canada’s interests in: “ensuring that punishment by countries with whom Canada has relevant treaties is respected”; “respecting the rule of law and other countries”; and “respecting international relations.”
[52] In light of his recognition of the ITOA’s broad and diverse pressing and substantial objectives, Justice Phelan noted that the suggestion that, once a foreign country consents to a transfer, the Minister is “virtually obliged” to consent to the transfer:
ignores the fact that the prisoner has put himself in the position of restricting his freedoms; ignores the goals of rehabilitation by assuming that no other country can rehabilitate a person; ignores the particular individual circumstances of reintegration by assuming that all Canadian citizens have long and deep connections in Canada and ignores the secondary purposes of the Act in respecting the rule of law in other countries and respecting international relations.
[53] In Pierino DiVito v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA 39, Justice Robert Mainville identified the security of Canada and the prevention of offenses related to terrorism or to organized crime as additional pressing and substantial objectives served by Parliament’s decision to empower the Minister to determine whether or not to allow offenders to serve their sentences in Canada.
[54] The ITOA does not create or recognize a “right” of Canadian offenders to return to Canada, but creates a framework for implementing Canada’s international treaty agreements and administrative arrangements designed to enable offenders to serve their sentences in the country to which they are citizens or nationals.
[55] In Getkate v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 965 at paragraphs 26 and 29, the court noted that the ITOA does not create an automatic right to return to Canada to serve a sentence, but serves “to assist rehabilitation and reintegration in appropriate situations.” Although rehabilitation is a core objective of the ITOA, there is no presumption that a given transfer will serve the objective of rehabilitation and, even if the Minister believes a transfer would serve this objective, it is open to the Minister to deny the transfer request based on his consideration of the other pressing and substantial objectives of the ITOA.
[56] Similarly, in Pierino DiVito, above, the Federal Court of Appeal observed that:
Though for some offenders the loss of the perceived “benefit” of a potential earlier conditional release under the Canadian correctional system may be unfair […]. Barring exceptional circumstances, there is nothing unfair or unreasonable in the fact that [offenders who have committed offenses in foreign jurisdictions] are subject to the incarceration systems of the foreign jurisdictions in which they committed their offenses.
[57] Justice Mainville, in Pierino DiVito, above, found that the legislative framework in which the Minister’s discretion is exercised in the ITOA context is reasonable and rationally linked to the pressing and substantial objectives of the ITOA in a number of ways:
First, the Minister’s discretion is strongly fettered by specific enumerated factors which must be considered, including notably whether the offender’s return to Canada would constitute a threat to the security of Canada (paragraph 10(1)(a) of the act) or whether the offender will, after the transfer to Canada, commit a terrorism offence or criminal organization offence (paragraph 10(2)(a) of the act). These are serious and important constraints on the Minister’s discretion. Second, the scheme of the legislation allows the offender to make prior representations to the Minister through a written request in which all pertinent factors and circumstances can be addressed (section 7 of the act). Third, the Minister must provide written reasons if he refuses his consent to the transfer (section 11 of the act). Finally, the decision of the Minister is subject to judicial review before the Federal Court, and the decision of that court is itself subject to appeal to this Court and ultimately, in appropriate cases, to the Supreme Court of Canada.
[58] As transfers under the ITOA are a discretionary privilege for offenders incarcerated abroad, predicated on Canada undertaking to administer their sentences and assuming the risks and responsibilities of these undertakings, and are not a right or presumptive entitlement, applicants must demonstrate that their transfers would advance – and not threaten or undermine – the beneficial objectives of the Act. Applicants are put on notice of what “pertinent factors and circumstances” will be considered by the Minister by virtue of the purposes of the ITOA, the factors set out in section 10 of the ITOA, and the information requested in the CSC Request Forms.
ii. Section 10 Factors
[59] In Kozarov v Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 866, Justice Harrington recognized that the Minister’s determination of whether to consent to a transfer under section 8 of the ITOA is to be treated as a discretionary decision and not as a fact-finding mission mandating approval based on a binary analysis of the factors. The Court has repeatedly emphasized the Minister’s residual discretion under the ITOA, noting that the factors the Minister must consider under section 10 are not exhaustive, nor are any “determinative of the result.” Rather, they “are simply factors to be weighed by the Minister any reasonable and transparent way.”
[60] The factors that the Minister must consider under section 10 of the ITOA are consistent with and rationally connected to the stated purpose of the Act as set out in section 3 and the objectives of the legislation. In Holmes, above, Justice Phelan noted that “[t]he the protection of society in the best interests of the Canadian citizen prisoner are balanced in the Act through the factors which the Minister is required to consider.”
[61] For example, Justice Phelan identified the section 10(2)(a) factor as “address[ing] both the need to protect society and the utility of attempting to rehabilitate a person who will continue the same kind of conduct that has led to his or her incarceration,” and rejected the argument that section 10(2)(a) is a significant impairment of an offenders disputed section 6 rights as “ignor[ing] the consideration that persons who will (again) engage in these offenses undermine the beneficial objectives of the Act.”
[62] In Dudas v Canada (Public Safety and Emergency Preparedness), 2010 FC 942, Justice John O’Keefe observed that it would be open to the Minister to “[take] into account all relevant considerations and come to the conclusion that approval of the transfer request would not assist in achieving the objectives of the international transfer of offenders system,” provided that the Minister “state that this was the ultimate test he set out for himself” and “express which purpose or purposes were most crucially relied on in coming to his ultimate conclusion.” He also noted that “the Minister may lawfully come to his or her own conclusion” in exercising his or her discretion under the ITOA and “[t]he fact that a Minister has come to a given conclusion before, does not prevent that same Minister or a different Minister from lawfully changing his or her mind if faced with the same set of facts at a later date.”
[63] The Court has consistently recognized that the Minister’s exercise of his discretion under the ITOA requires that he consider and weigh information from various sources and ultimately make a decision in light of his obligations under the ITOA as well as his other statutory obligations and policy considerations, including “prevent[ing] members or associates of criminal organizations from exercising influence and power in institutions and in the community” and balancing the protection of society and the best interests of the Canadian citizen prisoner.
[64] In determining whether he will approve a transfer request by a Canadian citizen, the Minister may weigh the corollary risks and obligations of undertaking to administer an applicant’s foreign sentence in Canada. Accordingly, the Minister’s discretion to grant or deny a transfer request imports considerations and decision-making functions pertaining to the administration of a custodial sentence for a criminal conviction, such as offender classification, placement and transfers within Canada, as well as parole and conditional release.
[65] Although it is open for the Minister to base his decision to grant or refuse a transfer request on his assessment of the enumerated factors, he is not required to limit his consideration to these factors, nor is he required to make findings in respect of any or all of the mandated factors.
[66] The Minister’s role is to consider the enumerated factors and weigh them in a reasonable and transparent way in informing his global assessment of whether a given transfer meets the stated objectives of the Act. However, having addressed the enumerated factors, the Minister may weigh or balance the relevant factors and considerations as he sees fit.
iii. The Decision
[67] In his reasons for denying the Request, the Minister clearly articulated and applied the legislative framework for the exercise of his discretion in considering requests for transfer under the ITOA, in accordance with the guidance provided by Pierino DiVito, above, and Holmes, above, namely basing his Decision on his belief that a transfer would not achieve the purposes of the Act, subject to his consideration of the unique facts and circumstances of the Request as presented to him in the context of the purposes of the Act and the specific factors enumerated in section 10.
[68] As in Holmes, above, the decision “focused on the potential for commission of a criminal organization offense,” making reference to the specific information relating to the section 10(2)(a) factor that caused the Minister concern. Moreover, based on the nature of the Applicant’s criminal activity, the Minister could reasonably conclude that “another accomplice was involved who was not apprehended” and that the Applicant “has ties with an organized criminal syndicate believed to be involved in the purchase and trafficking of a large quantity of narcotics.” The Minister also reasonably expressed concern regarding the Applicant’s “extensive” criminal history in Canada, including multiple convictions dating back to 1996.
[69] As Justice Near noted in Grant, above, international drug trafficking constitutes “a very serious crime that one could reasonably conclude required financing, planning and other logistics often associated with organized crime.” The Applicant and his accomplices had arranged to purchase 100 kg of cocaine. The Applicant and his accomplice had the means to pay the CI more than $350,000 in US currency. Furthermore, the Court can take judicial notice of the fact that cocaine is a dangerous drug, and sells between $100-$120 per gram, placing the street value of the drugs seized from the Applicant at between $10 million and $12 million.
[70] Accordingly, the Minister’s consideration of the fact that the Applicant was involved in the commission of a serious offense involving large quantities of cocaine which would have likely benefited the group he assisted is relevant to his assessment of the section 10(2)(a) factor, as this recognizes the resources, premeditation, and organization of the Applicant’s unidentified associations in Canada and the US. This consideration also demonstrates that his rationale in finding that the Applicant’s transfer would not achieve the purposes of the Act was informed by his consideration of aspects of the administration of justice purpose.
[71] The Minister also “noted the positive aspects of [the Applicant’s] situation,” namely the existence of “social and family ties in Canada” and the fact that the Applicant’s “family members remain supportive.” While the Minister’s reference to the “positive aspects” in respect of the Applicant’s request is limited to his consideration of the section 10(1)(c) factor, this was the only ITOA factor for which the Applicant presented the Minister supportive reasons in his CSC Request Forms in support of his request under section 7 of the Act.
iv. Little Evidence Presented
[72] It was incumbent on the Applicant to present any evidence he wished the Minister to consider as part of his application. He presented no evidence that the US could not rehabilitate him and presented no information regarding his “particular individual