Federal Court


Criminal Law

PRISONS
Minister did not consider competing factors regarding public safety on transfer application

Applicant was Canadian citizen incarcerated in Ohio. Applicant pleaded guilty and was sentenced to 10 years for attempting enticement of minor to engage in sexual activity. Applicant had moved to United States to pursue relationship with American citizen who was now his ex-wife. Applicant had brother and sister in Canada. Applicant applied for transfer to Canada to serve remainder of sentence. Respondent minister denied applicant’s request for transfer of sentence pursuant to International Transfer of Offenders Act. Minister found that transfer would not contribute to administration of justice, including public safety, in Canada or to applicant’s effective reintegration into community. Applicant applied for judicial review. Application granted. Standard of review was reasonableness. Minister’s decision appeared to rely on community assessment report and did not consider clearly competing factors outlined in memorandum to minister and Correctional Service Canada summary. Minister stated transfer would not contribute to public safety but there was clear evidence to contrary. Minister did not consider contrary position that public safety in Canada might be enhanced by applicant’s transfer. There was no weighing of evidence. Correctional Service Canada summary and memorandum did not contain statement regarding rehabilitation programs available to applicant in United States. There was lack of consideration of competing factors by minister and it was not clear how he arrived at decision and why strong evidence in favour of transfer was rejected. Some of minister’s findings were directly contradictory to what was stated in memorandum and summary. Minister must engage in process of considering and weighing of evidence. Application was remitted to minister for reconsideration.

Tosti v. Canada (Minister of Public Safety and Emergency Preparedness) (Jun. 12, 2015, F.C., Glennys L. McVeigh J., File No. T-2132-13) 256 A.C.W.S. (3d) 104.

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